As Pliny says, “characterization is everything.” Just as violation of our immigration laws produces persons whose status is “illegal” to some and “undocumented” to others, we now are apparently experiencing the “legalization” of marijuana, which, of course, remains a federal crime despite its (repeatedly referred to in the media) “legality” in some states. So I thought that before we engage in another exercise in the undermining of the rule of law by treating some laws as more lawish than others, some pedantry is called for.
The first comment I wish to make at the outset is that I favor some form of federal decriminalization, on the grounds that analogies between the consequences of our current marijuana regime and old Prohibition, are sufficiently strong to remind us that crazy is when you keep doing the same thing while expecting a different result. I also think that decriminalization at the federal level is inevitable.
However, there is no fair understanding of world and language that allows us to say that marijuana has already been legalized. First, to be legalized, it would have had to have been illegal when prohibited by, say Washington State, and now legal when no longer prohibited by Washington State. The only way this could be true is if Washington State’s marijuana laws are valid but federal laws are not. How could that be true? Did not Congress duly enact the federal marijuana laws? Perhaps it only thought it did, but that the laws were unconstitutional. So we must know what it would mean to say that they are unconstitutional.
One thing it could not mean is that the Supreme Court, in the due exercise of its powers of judicial review, had held that the federal marijuana laws were unconstitutional, because that question was already asked and answered, in Gonzales v. Raich, where the narrow question was whether Congress could use its Commerce Clause power to ban the growing of medical marijuana for in-state use, and following its own prior reasoning in Wickard, the Court held that Congress could. The broader questions about the permissibility of Congress regulating the growing and distributing of non-medical marijuana in-state answer themselves, since medical marijuana is the more difficult question.
But perhaps the Supreme Court has misinterpreted the Constitution? One view, seldom expressed out loud but popular nonetheless, is that constitutionality is determined by the objective contours of natural right, such that no federal law is constitutional if it involves a violation of natural right, and the personal use of marijuana is a natural right. There are some worries about such a view (see below) but the point here is that if you have a natural right to grow, sell or use marijuana, such that federal laws are invalid where they violate natural right, then either the federal government is peculiar in being held to natural right, or no law, state or federal, is valid when it violates natural right. In that case, Washington cannot legalize what it was never able to validly render illegal in the first place. To get an asymmetry here, you have to subordinate natural right to original intent and say that the reason why natural right determines validity at the federal level is that the Federal Founders so intended, but the ratifiers of the Washington state constitution did not so intend. The evidence for this proposition is only slightly weaker than the evidence for the other two possibilities (they both so intended, neither so intended). Rather, I think we should follow H.L.A. Hart and say that criminalization of marijuana is morally unfortunate (“violates natural right” if you like, though them’s fighting words) and that it being so is a good reason to eliminate such laws, rather than taking it as a reason such laws, surprisingly, do not exist.
But there is another Hartian thought that needs to be expressed here: the central function of law is to facilitate peaceful coordination, and it is awfully hard to do this if the law does not possess mechanisms that enable people to readily recognize what the law is. Hart calls such devices “rules of recognition,” and one of them is when we ask the Supreme Court, in the context of a case or controversy, if a putative state or federal law is rendered null by its inconsistency with the federal constitution. The purpose of giving this task to the Supreme Court is not because it is infallible, but to ensure that we are all on the same page: they tell us what page that is.
Now I called these pedantic thoughts because, of course, everyone already knows them. We know that the immigration laws do not disappear in a puff of smoke just because they need to be reformed, are susceptible to moral criticism, and we use the word “undocumented” instead of “illegal” to describe those who violate them. We know that trafficking in marijuana is still a felony even if the citizens of Washington don’t like that fact. But we also know that using language appropriate to activities which are legal to describe activities which are illegal helps to reduce respect for, and ultimately compliance with, a law, and thereby helps pave the way to legal change. This is why journalists use words like “undocumented” and “legalization” in discussion of laws they do not approve of. It is, of course, a wonderfully good thing that people of a different political persuasion are not equally capable of uttering phrases like “the so-called ‘law’ that requires you to carry health insurance.” It is also a wonderfully good thing that discrediting the rule of law when it suits you has no propensity to discredit the rule of law more generally, since that would have the effect of diminishing the power to use law for any purpose. But at least if that were to happen, no harm would come of it, since rule of law is overrated anyway. What we really want is the contest of moral opinion, which will of course be peaceful because in the absence of law, contests of moral opinion are always peaceful. Aren’t they?