A Federal-State Law Inconsistency Shouldn’t Stop Californians from Legalizing Marijuana

The law is the law. If we unquestioningly accepted that maxim, imagine where we would be today. Jim Crow would be alive and well, rivers and skies would be polluted, and women wouldn’t be allowed to vote.

Yet such is the mindset of many of those who criticize Proposition 19, the marijuana regulation and taxation initiative on the November ballot. In his July 18 Times Op-Ed article, UCLA public policy professor Mark A.R. Kleiman declares that state legalization “can’t be done.” He points out, correctly, that if the initiative is successful, the federal marijuana prohibition laws will remain in place. What he assumes, incorrectly, is that federal agents will swarm into California, busting farmers and arresting distributors and shopkeepers, to say nothing of the garden stores that sell them equipment and supplies, the accountants who do their books and the municipal tax officials who delight in assessing and collecting the new tax revenues.

Kleiman might well have uttered, “The law is the law.”

But the law is neither absolute nor infallible, and that’s why Californians can — and should — legalize, regulate and tax marijuana-related commerce.

The federal-state dynamic concerning marijuana is not complicated. Under our system of federalism, both the states and the feds may prohibit commerce in marijuana, but neither is required to do so. Similarly, during alcohol prohibition (1920-33), commerce in alcoholic beverages was prohibited not only by federal law (the Volstead Act) but by the laws of most states. In 1923, New York repealed its state prohibition laws, leaving enforcement, for the remaining 10 years, entirely to the feds. California voters overwhelmingly did the same thing in 1932, one year before national prohibition was repealed.

Let’s think this through. If Proposition 19 passes, two important balls roll into the feds’ court. The first is that the sole responsibility and expense of enforcing marijuana prohibition will be shifted to them. After Nov. 2, marijuana “offenders” could be arrested only by federal agents, prosecuted only under federal law, and sentenced only to federal detention.

If the feds undertook this, cases involving simple possession cases and small-time marijuana businesspeople, usually relegated to state courts, would flood federal courthouses. But even with a drastic increase in funding for federal enforcement, such activity would barely put a dent in California’s marijuana trade, and would fail to stifle California’s policy change, as the federal government has failed to do since the first medical marijuana laws were passed 14 years ago. Moreover, justifying the invasion into a state’s province to undermine the will of the voters at such great expense to taxpayers would be highly questionable, especially in the current economic climate, not to mention a political climate that is at best lukewarm on prohibitionist policies.

The second ball is even more significant. Voter approval of Proposition 19 would shift to the feds the responsibility and burden of justifying marijuana prohibition in the first place. Now, the Washingtonians who have never questioned decades of anti-pot propaganda can explain to the people of California why we cannot be trusted to determine our state’s marijuana policies. Let them endorse the prohibition laws’ usefulness as a tool of oppressing minorities. Let them celebrate how minor marijuana violations cost people their jobs, their housing, custody of their kids, and entrap them permanently in vast criminal justice databases. Let them justify the utter hypocrisy of the legal treatment of alcohol and tobacco, as compared with the illegal treatment of marijuana. Let them tell us how many more people will have to be prosecuted and punished before marijuana is eradicated, how much that will cost, and where the money will come from.

Proposition 19’s success in November would put the feds in a quandary, yes, but it is a quandary of their own making. Unlike alcohol prohibition, which required a constitutional amendment, Congress could fix this easily with a simple amendment to the Controlled Substances Act allowing conduct legal under state law and respecting the right of states to regulate and tax the cannabis industry. After all, determining what is a crime is traditionally handled at the state level; indeed, federal prosecutions of drug possession make up a miniscule portion of overall drug arrests.

Instead of hewing to a misguided and unworkable federal hegemony in this area, encouraging innovation at the state level would be a more rational federal policy. And to be clear, legal scholars have long disagreed with Kleiman’s conclusion that the feds must and will intervene to try to quell state action in this area.

States need not shrink from countering federal policy on marijuana. California can show leadership in driving needed reforms, as it has before. In other words, the law need not be the law if you’re willing to stick your neck out. Cautious academics and politicized public employees will always embrace the status quo, joined by risk-averse politicians who misconstrue a lack of constituent “noise” on this issue as satisfaction with current law, not fear. But voters know better.

Not only can Californians regulate and tax marijuana, we should.

Hanna Liebman Dershowitz, an attorney in Los Angeles, is a member of the Proposition 19 legal subcommittee.

– Article from The Los Angeles Times.



  1. Anonymous on


  2. Anonymous on

    That needs to be mentioned more. For about the past year-and-a-half now I’ve been pouring over every scrap of legalization information and campaigns, and I’ve never seen that mentioned.

    I suppose bringing it up in an L.A. Times editorial is a good start, though.

  3. Anonymous on

    possibly trying to sabotage our progress?

    im willing to believe your prison angle. but that doesnt change the dire need to legalize for my/our own benefit.

    but seriously, you cant fight extremist with more extremism. i doubt if most of these sort of comments are legitimate views of our own community.

    communicating the legitimacy of weed gradually is the only way. similar to talking calmly to a distressed person from jumping off a building. and discussing weed deffinently puts some of our population in a distressed mindset (for whatever reason).


  4. Datrebor on

    You rather have it stay Illegal then to have a 5X5 25 sq ft grow area legally? I asked and was told you can have up to 25 plants in that plot and whats to stop you neighbor from growing too? You don’t have to use to grow. You can have many friends grow for you and have 10 lbs 20 lbs 100 lbs per harvest? This bill is not perfect but it is a great step in the right direction. Other then to get this law in all other states the next step would be to get the Government to admit that they have lied to use for the last 70 years then we would truly get the police to leave us alone.

  5. M.SebastianPatrick on

    ANYONE who opposes ANY step toward legalizing the cannabis plant is in favor of and believes in the fact that Americans should be incarcerated for carrying forbidden flowers, should have their property and children stripped from them, their dogs shot, and their freedom erased. Obviously this is not the free nation it purports itself to be; however unless you vote against the injustices served against your fellow Americans-no one will be there when such injustices are commited against you. Take a stand California-All smokers must put their differences aside and take back some of the freedoms we are supposed to already have as a Nation-or more freedom will be stripped from you.

  6. Anonymous on

    I respect your view of this bill. But , I think this bill is a step in the right direction……. I think we need to slowly integrate these laws. We cant just say “its all or nothing”.

  7. Anonymous on

    Fist off I am a Veteran, part Apache indian and a Californian. I do not support prop19 and will be voting NO. Why???? because it will not keep people out of jail… why???? because the leading cause of people going to jail in record numbers in california is FACT because they were carrying more than an oz on their person which prop19 will not change that.

    Also… being a former hard core, in your face concervitive and bible thumper… I was won over to marijuana because of the mmj laws. Prop19 will not win over the concervitive states or the bible belt states. The only hope for this is pushing the mmj laws. I know how they think and what they do.

    I feel prop19 will only hinder our movement and my even ruin the chances for mmj even in these states.

    I hope people can see this. I feel like people are so blinded with thinking this is legalization that they are living for now and not realizing the possible effects on the future by an informed decision.

    If you want to grow and smoke… get a rec as it offers alot more freedom than prop19

  8. Castklearr on

    The 12th planet described by the Summerians 5000 years ago and never discovered comes into radar view on Dec 21, 2012 from its 3600 year orbit of our sun.As described in the Kolbrin Bible the “destroyer” returns and makes Armmageddon look like a bar fight!

    The Summerians describe the planet Pluto that wasn’t discovered til around 1715…..5000 years ago….they also talk about the giants from space that we call gods….30 foot tall with a head the size of a VW and the intelligence to “invent species and calamities”. Are returning Dec 21, 2012 to reformat the human species to take away the “dual mind” mentality that take away from the heavenly experience invented by the ANNUNAKI to live harmonically on earth.

    This need for catlyst like pot, lsd, peyote, mushrooms will end and huemans are reenlightened and resume life in the “Garden of EDEN” blissful in earth bounty and eternal love.



  9. Castklearr on

    This guy who put forward prop 19 is confined to a wheelchair and now he wants to confine my growing area to the size of a big wheelchair!


    I’m for no restrictions and the police fucking off totally. No restrictions on anything having to do with marijuana…no limits no cops no tax no fucking screwing people over keeping us safe….FUCK YOU PIGS ENOUGH IS ENOUGH GET AWAY FROM ME….


  10. Dave on

    This is a really good article; didn’t hurt my little brain at all reading it. Wish I could get my point across that good. Better yet, wish I was an American living in California; sounds like a lot of reasonable people live there?

  11. War Veteran on

    In total agreement with Paint the Sky and Paint. All people we come in contact with need to hear the message as to why it needs to be not prohibited: its more than a quick fix in the revenue leak –it will decrease Mexicans coming across the border by thousands when the gangs have less money in Mexico to terrorize them –thus stopping many –it will show Mexico that it can be used as an Industrial product –thus creating jobs for them and keeping many more thousands from coming –which all the above about immigration is a Republican’s wet dream. More than just immigration –any state that sells food, paper, fuel, paint, clothes, cosmetics, wood and plastics –especially the stuff that we use and throw away on a regular basis will prosper from industrial hemp which will inevitably come out of this legalization movement. Detroit will have an upped cash flow from the auto industry. Grown in America and Made in America will be seen more than Made in China when it comes to consumer goods. Farmers will have more options. It will increase our Military and Defense budget which is an orgasm for any Republican based on increased revenue and fewer money being wasted on the Legal System –not to mention what the military can use as equipment and articles issued that are made from the hemp -along with fewer terrorist funds who use marijuana/hash drug money to fight us and bomb building world wide. Cleaner fuel. Cleaner coast lines when we realize it can clean the sludge near our water systems and oceans. Cheaper multi-vitamins for those that care about health. Cheaper health care from the increased revenue and materials annually grown (plastics) from the plant. Cheaper housing from the wood of hemp and its ability to make concrete. Cheaper cars and fuel. Increased spending in Education from cheaper school materials made from hemp and less wasted taxes on the Criminal Justice System. We don’t have to feel sad when throwing away plastics or paper when said paper and plastics are biodegradable and annually grown unlike oil and trees. We can teach nations across the world to sow the hemp seed and grow factories and grow gasoline for each countries own personal use, which will ultimately lead to better nations and fewer poor: All of this is factual and yet subtle –it won’t cure the planet –just provide it a bit of healing.

  12. Bhonze on

    I agree; I am from south eastern US and am waiting and hoping for Cali to Legalize! This should not be a problem, many people don’t realize that NYC legalize the sale of alcohol before the end of prohabition. Check history; this is why most of the problems moved to Chicago. So don’t worry let the people’s voices be heard! I’ll be on the first plain to Cali if it passes. CAN’T WAIT!!!!

  13. Anonymous on

    California !! All Other States Are Watching Our Moves With A Magnifying Glass! Theyre Waiting For Us To Guide Them To A GREEN NATION !! We Have Done It Before We Will Do It Again! All Of These Dispensarie people Against This Proposition Are GREEDY People !, Because They Know If This Passes We Will Be Able To GROW our OWN !! Lets Look At Vancouver Canada: Theyre Lovely People Whos Only Concern Is That EVERYONE can Have The Herb On Them! Forget What The polls Say Theyre Not The Ones Who Will Decide This…WE THE PEOPLE WILL on November 2nd !!Dont Just Kick Back And Smoke And See What Happens ! Get Yo Booty Off The Couch Register To Vote And Make A Change! Paint The Future GREEN !! Dont Vote For Meg Whitman Or Jerry Brown They Stongly oppose This And are Filthy Liars and racists !