It’s medicinal. It’s recreational. It’s legal. It’s not legal. What is the deal with pot?
Don’t shoot the messenger. Marijuana is not legal. The Supremacy Clause of the United States Constitution makes federal law the Trump Card for any other laws in the country.
How Did We Get Here?
The long and short of Mary Jane’s status is solidly in a gray area. The State of Michigan legalized it for medicinal use, so it’s legal, right? Not so fast. The foundational document to the United States’ system of government and legal system is the Constitution. This document was written as a replacement for the first government established after the war with our British cousins across The Pond. That first post-Revolutionary War government was a confederacy (much like the style of government our brothers south of the Mason Dixon Line chose when they went to war to preserve their tradition and “right” to own other humans). It was an abject failure. Our “new” Constitution was written, about a decade after the Revolutionary War, in 1787 (ratified later).
The present issue about weed is traced directly to that document and specifically the Supremacy Clause. That clause is found in Article VI, Clause II of the Constitution and is relatively short:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.
So What Does That Mean?
Basically, that sentence says that nobody can tell the United States Government what to do, outside of the U.S. Congress and the Federal Court System, and nobody is allowed to do something the federal government disagrees with, Bill of Rights notwithstanding. You know that there are several sections of the Constitution which limit what the federal government is allowed to do, but there are a few big power sources in there for the Federal Government, and the Supremacy Clause is one of them.
There are also checks and balances to make sure the power is not abused, which have been used with varying degrees of success. But, there it is – the Federal Government is pretty powerful in this country. No city, county, state, or alliance of states can fight the feds. Some folks tried that once in the 1800’s. It was ugly.
So Is It Legal, Or Not?
How does all this mix today? Well, sticky-icky became a fan favorite in this country and, as you know, under the Obama Administration the Federal Government stopped prosecuting charges related to the loco-weed if the accused did not break any state laws. Let’s be clear about this; ganja was still illegal according to the Federal Government and its Controlled Substances Act of 1970 (CSA).
There are 5 schedules (or levels) of drug that are controlled by the CSA. We only really need to concern ourselves with the first 2 or 3 schedules. Schedule 1 is a list of drugs that have a high potential for abuse and no currently accepted medical use. Schedule 2 lists the drugs with a high potential for abuse that has a medicinal use. Schedule 3 lists the drugs with lower potential for abuse, but still higher than the Schedules 4 and 5. So, here are examples of drugs on those lists:
Schedule 1: heroin, lysergic acid diethylamide (LSD), methylenedioxymethamphetamine (ecstasy);
Schedule 2: cocaine, methamphetamine, Vicodin and Adderall; and
Schedule 3: Tylenol with codeine, ketamine, anabolic steroids, testosterone.
Medicinal Meth, But Weed Is Illegal?
Guess which Schedule the reefer is on. Yes, you guessed it; Schedule 1: a drug with no accepted medicinal use and a high propensity for abuse. As you can see from the other drugs listed as examples, Puff the Magic Dragon (herb, not the lovable childhood character) keeps some mighty dangerous company. As a side note, how does methamphetamine have a currently accepted medicinal use and a lower Schedule than hash’s leafy green brother?
You might be thinking that the ranking system makes no sense. You might be right. But that’s the law we are currently under. So, how does the West Coast’s crusade for recreational roach-smoking legalization jive with what most people call “legal?” It doesn’t. It is not legal. Nothing about it is legal. Legal at the state level is akin to a 14-year-old kid asking her father if it is OK to drive the car. Dad makes the rules, right? Dad isn’t going to punish her for driving the car. Let’s say the state our fictional family lives in said that it would look the other way about 14 year-olds driving cars without actually changing the laws. No consequences, right? Maybe.
If a state official promises to not enforce a law on the books, like the one that says a person must be 16 years old to drive a car (we are not talking about driving permits, here), that doesn’t mean the state official must follow through with that promise. The state official could change her/his mind at any time. There is nothing that can enforce that promise. If 14-year-olds want to drive cars, then they will have to lobby the state legislature to change the law.
I am absolutely not calling marijuana consumers or business owners juvenile. I am trying to demonstrate the various powers of government through a familiar family model. It might sound ridiculous, but what do we learn from this anecdote? We learn that the Federal Government is the final say-so when it comes to what is legal.
Well Great. I’m Confused.
What does this mean for you, my readers? Be warned and on-guard! It means you should keep the current legal state of dank in mind, whatever you do with it. Knowledge is power. An organization once asked me about investing in marijuana and what my legal opinion was. This is the correct answer at the time:
Marijuana is ‘sort of’ legal. Just because the Feds said they wouldn’t enforce the CSA (Controlled Substances Act) against people if the state said it is legal doesn’t mean they won’t, just as suddenly, decide to enforce it. If you invest millions in your marijuana operation and a year down the road the Feds all of a sudden start enforcing, you are running the real risk of losing every penny of your investment and possibly some jail time for members of the organization. You will at the least have an expensive legal battle, even if you do win in the end. So, I cannot recommend you invest in it until it’s actually legal. That said, if you are intent on investing in it, I will do what I can to keep you within state law and non-binding federal guidelines.
What happened a few weeks after I gave that opinion? Our Attorney General, Jeff Sessions, announced the leniency policy legacy from the Obama Administration was terminated. While it is true that there have been no big federal busts on skunk brokers or smokers, we are currently living in a legal climate that is increasingly polarized toward the leniency and enforcement poles.
Do You Have Any Advice Then?
Personally, I am a healthy skeptic about a lot of the claims about the medicinal uses of marijuana. Being a Schedule 1 substance means that it’s very difficult to plan the kind of large studies I trust. However, while I am a skeptic, it appears to be true that herb is, in most circumstances, not dangerous. Marijuana should be studied. We, as a society, have mountains of data about other things people like to ingest and do, like tobacco, alcohol, driving, sex, pornography, and even eating sugar. People like marijuana. It should be studied a lot. I would love to see the large, critically acclaimed, peer-reviewed studies about it! It does appear to be helpful for seizures, cancer patients, pain reduction and much more, but I want to see medical science meeting the FDA’s standards before it is prescribed as medicine.
You’ll probably like this opinion, though: whether it should be prescribed as medicine or not, I do believe it should probably be as legal as alcohol and cigarettes.
What should you do about it, if anything? If you are a big fan of the green stuff then you should call your senator and write your congressman, show up to lobby them in person! What? Did you think lobbying was just for big business or interests? If pot is your jam, then put your time and money where your doobie is and make it happen.
As for the time being, if you are a marijuana connoisseur or marijuana business owner working with an attorney and s/he does not give you the annoying and boring speech about your hobby or business not being exactly legal, you should find an attorney that’s more interested in informing you and protecting your interests than lining his/her pockets. Just because the information is unpleasant, illogical, or close to changing, doesn’t mean it’s not very important for the time being.
Remember, knowledge is power.