On Friday, a panel at the Brookings Institute took on the issue of international drug law.
As you could have easily predicted, the analysis was shallow. Why would we even be talking about this if anyone understood it? What the panelists did do well was to explain the role and the history of the United States government in drafting the treaties. The United States played a major role in drafting the treaties and continues to play a major role in enforcing them.
What was glaringly absent in the discussion was the implementation of these treaties in the United States and the protection in these treaties for national sovereignty. Not one panelist mentioned the language that is repeated consistently in every one of these treaties: Single Convention on Narcotic Drugs, 1961, Article 36: “constitutional limitations”; Convention on Psychotropic Substances, 1971, Article 22: “constitutional limitations”; Convention against Illicit Traffic, 1988: “Subject to its constitutional principles and the basic concepts of its legal system”. Apparently, none of the panelists finds this language significant or relevant.
Here is what wikipedia has to say: http://en.wikipedia.org/wiki/Federalism
Because the states were preexisting political entities, the U.S. Constitution did not need to define or explain federalism in any one section but it often mentions the rights and responsibilities of state governments and state officials in relation to the federal government. The federal government has certain express powers (also called enumerated powers) which are powers spelled out in the Constitution, including the right to levy taxes, declare war, and regulate interstate and foreign commerce. In addition, the Necessary and Proper Clause gives the federal government the implied power to pass any law “necessary and proper” for the execution of its express powers. Other powers—the reserved powers—are reserved to the people or the states.
One of the panelists did briefly explain sovereignty: http://en.wikipedia.org/wiki/Westphalian_sovereignty
Westphalian sovereignty is the concept that all nation-states have sovereignty over their territory, with no role for external agents in domestic structures.
What was missing from the panel’s discussion was the implementation of the treaties in the United States. International rescheduling was mentioned, and rightfully so. Marijuana is scheduled more severely than morphine, cocaine, or methamphetamine under the international treaties.
But, the failure of the panel to talk about state and federal scheduling was troubling. You don’t negotiate a treaty without offering something in exchange for your requested change. State and federal scheduling need to be changed first.
So, here is how I see it.
- The people have to make some change at the state level. After all, that is what is generating this whole discussion.
- The states have to make some change at the federal level. After all, the federal government negotiates treaties.
- The nation has to make some change at the international level. Interestingly enough, this was actually done for THC (the principle psychoactive ingredient in marijuana) in 1991.
Here’s what the Brookings institute is proposing:
On page 21, the authors suggest several options:
- amending the drug treaties;
- denouncing them and then acceding to them once more, while taking necessary reservations to account for legalized marijuana;
- reaching an agreement inter se, as between the United States and drug treaty states also desiring to revamp their domestic marijuana policies;
- or modifying the scheduling of marijuana within the treaties.
I would argue these options should be pursued in reverse order, starting with modifying the scheduling of marijuana within the treaties. The reason for that is because it is the way the treaties were intended to work. Scheduling is for flexibility. Rescheduling would simply prove the treaties were written well and can evolve over time.
It is well settled by now that states are not preempted by federal law from changing their policy on marijuana.
So, we are not in violation of any of these treaties, although these authors and panelists seem to think we are. That is sad commentary on the pathetic lack of understanding scholars have today regarding our federalist system of government and national sovereignty.
Since we have scheduling at all three levels, state, national, and international, that would be the first step to take. If the problem can be solved by scheduling, and it clearly can since scheduling includes total removal of any substance from all of the schedules, then that has to be tried first.
All of these laws were written to include flexibility so that the law would not have to be re-written. So, re-writing the law needs to be our last option, not our first.
As stated in the Declaration of Independence, 1776: http://www.archives.gov/exhibits/charters/declaration_transcript.html
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
We can’t ever make a credible case for abolishing these international treaties if we don’t use the mechanisms established in the treaties for addressing the evils in them.
So, the danger I am seeing is focusing on top down strategies, when our system guarantees a bottom up structure. If we don’t stand up for our rights, then it will become a top down system by default, because that’s how government naturally functions. The Brookings Institute seems to think this is a top down problem, and that’s contrary to our system of government.
Any gap at the bottom will be filled in from the top. That’s just how government operates. But, it’s our own fault if we leave that gap at the bottom for the top to fill.
I just don’t see any scholarly work adequately addressing this topic. Either scholars have given up hope in the people governing themselves, or they just can’t see it in the first place. What a sad state of affairs.