ON MAY 1, Director of the Office of National Drug Control Policy John P. Walters had an op-ed in the Washington Post titled "The Myth of ‘Harmless’ Marijuana." Walters’ claims include that marijuana is "pernicious," "directly affects the brain," diminishes short-term memory and the development of long-term memory, and that "marijuana use is linked to tens of thousands of serious traffic accidents."
National Review Online editor Jonah Goldberg writes that "it’s difficult to read Walters’ op-ed without subbing the word ‘alcohol’ for marijuana and when you do, it undermines Walters’ case quite a bit."
Like marijuana, alcohol of course erodes and impedes certain functions, with many car wrecks caused by drunk drivers. However, a consistent advocate of substance criminalization would then conclude that repealing Prohibition was wrong, not that criminalizing marijuana is wrong.
What demolishes Walters’ case for federal prohibition of marijuana is Thomas Jefferson, in whom reside two principles fundamental to American government: individual freedom and constrained federal purview.
Jefferson wrote Notes on the State of Virginia in the early 1780s, prompted by a set of queries by diplomat Francois Barbé-Marbois (who later participated in the Louisiana Purchase). In a chapter on "Religion" he argued:
The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others [emphasis added].
Thus, to criminalize acts not injurious to others is to exercise illegitimate governmental power. "Crimes" in totalitarian regimes such as "apostasy" and "enemy propaganda" come to mind in this vein.
Jefferson re-affirmed government’s narrow mandate in an 1816 letter: "No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him." While some see the State as an instrument of human engineering, Jefferson rejected this notion of political omnipotence.
In 1798 when Jefferson was Vice-President, Congress passed "An Act for the Punishment of Certain Crimes against the United States," which contained the following provision:
…if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States…then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Known as the Sedition Act, this enactment incensed Vice-President Jefferson.
In response, he wrote a resolution adopted by Kentucky’s legislature describing the Sedition Act as unconstitutional, "alarming," and "obnoxious." He admonished that "if those who administer the general [federal] government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence."
Since the Tenth Amendment to the Constitution reserves powers not delegated to the federal government to the states, and since criminalizing "malicious writings against the government of the United States" was not a power delegated to Congress, Jefferson soundly considered this prohibition illegitimate. (The Sedition Act expired during Jefferson’s presidency. Historian Forrest McDonald notes in States’ Rights and the Union: Imperium in Imperio, 1776-1876, "Jefferson quietly pardoned the ten printers who had been convicted under the Sedition Act, and Congress quietly restored the fines they had been assessed.")
In his Autobiography (1821), Jefferson emphasized the nexus between decentralization and self-government:
…it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected. Were not this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual proprietor. Were we directed from Washington when to sow, & when to reap, we should soon want bread.
In light of the Jeffersonian values of states’ rights and personal autonomy, the federal government’s prohibition of marijuana is glaringly problematic.
Even with the fantastic assumption that marijuana use injures the user and others, does this mean less than 600 legislators in the District of Columbia are empowered to nationalize policy on marijuana use? If so, then certainly the federal government is empowered to nationalize policy on prostitution, burglary—indeed, anything imaginable.
The boundless federal authority implicit in the War on Drugs exemplifies Jefferson’s admonishment of a consolidated government annihilating state functions. Can one honestly claim that the Sage of Monticello would countenance the DEA and ONDCP?
And the War on Drugs has assailed more than federalism (as if that would not be sufficiently offensive); the Bill of Rights has also been a casualty, for instance the erosion of property rights and search and seizure protections. (See After Prohibition: An Adult Approach to Drug Policies in the 21st Century, ed., Timothy Lynch.) The chief property right violated by the drug war is self-ownership—the most important property right of all.
It’s fitting that Mr. Walters’ op-ed appeared on May Day. His expropriative, revolutionary cause has much more in common with Marx’s poison than Jefferson’s poetry.