4 Marijuana Politics
In view of current public perceptions, the evolution of sound policy for
marijuana legalization may take as long as or even longer than the evolu-
tion of the legalization of alcohol and tobacco. Today’s generation may
take the legalization of liquor and tobacco for granted, but it should be
recalled that the prospects for the legalization of liquor were once consid-
ered to be far more remote than the prospects for drug legalization are
today. The 18th Amendment to the Constitution, which helped to estab-
lish national prohibition of alcohol, passed on a wave of popular support.
In 1930, Senator Morris Shepherd (D-Tex.) scoffed at those who urged
alcohol legalization by asserting, “There is as much chance of repealing the
[18th] Amendment as there is for a hummingbird to fly to the planet Mars
with the Washington Monument tied to its tail.”26 Similar pronouncements
were made with regard to the legalization of tobacco by officials in those
16 states that prohibited the use of tobacco before 1922.27 Nevertheless,
the path toward legalization of alcohol and tobacco in those states that
banned its use was long, arduous, and completed only when the most
obstinate opponents were finally convinced that the costs to society of
prohibition were too high and the rewards of criminalization to organized
crime too great.
Unlike the end of federal alcohol prohibition, which took place sud-
denly with the ratification of the 21st Amendment in 1933, the legaliza-
tion of marijuana is likely to occur more gradually but inexorably as state
after state either legalizes or decriminalizes the medicinal and recreational
use of marijuana. As of the writing of this book, Alaska, California, Colo-
rado, Maine, Massachusetts, Nevada, Oregon, Washington, and the Dis-
trict of Columbia have legalized the recreational use of marijuana, and
another 20 states have decriminalized its use or approved its use for some
medical purposes.28 Overhanging this liberalized state regulation of mari-
juana, however, is federal law; as of the date of this book, federal law contin-
ues to criminalize all use of marijuana, both recreational and medicinal.29
Before we address these legal, economic, and social conflicts that arise
between federal and state law in states where marijuana is legalized, an
overview of the unsuccessful constitutional challenges to marijuana laws
is in order.
The question remains, how do we explain the American policy on vic-
timless crimes, of which drug policy—specifically, marijuana policy—is
but one? Many books and articles have been written on the social effects
of the enforcement of laws against other victimless crimes such as prosti-
tution, alcohol consumption, and gambling. All three of these societal
problems have been vigorously debated and whether the criminalization
of each serves the interests of society. However, few of the scholarly and
