Medical Marijuana Prohibition: Law and Order

The law enforcement lobby often argues that people who need cannabis for medical purposes “do not look sick.” Some of these advocates go so far as to assert that medical marijuana patients “do not look sick enough.” Since these critics are not doctors and medical diagnoses are not given at a glance, it is hard to understand why any reasonable person would give any credibility to such arguments. To be fair, however, the best defense for such claims is that the “non-sick” or the “non-sick enough” children will illegally access the plant for non-medical purposes. In short, some honest opponents of medical marijuana are legitimately worried about the rule of law.

This concern for law and order is not only valid, but also necessary. As The Declaration of Independence makes clear, liberty is impossible without security, so a little concern for the rule of law is fundamental. Therefore, if opponents of medical marijuana are appealing to the Laws of Nature and Nature’s God when they criticize the policy, then they can be forgiven for being mistaken. For who among the human race has not erred and deserved forgiveness?

To err is human, but to repeatedly repeat the same error over and over again is insanity. It should only take a bit of consideration to convince the well-meaning medical marijuana critic that doctors ought to be allowed to recommend cannabis for medical purposes to seriously ill people who could benefit from the plant. How could a free country conceived in liberty criminalize the healing properties of a plant? Don’t individuals, born free, have a natural right to privately grow and consume a plant for medical purposes?

Of course they do, but wrongheaded critics of medical marijuana nevertheless point to the fact that the United States Supreme Court has held that medical marijuana is illegal under federal law. This is true, but this is not the whole truth. The Court also held that if, after trial, marijuana was proven to have medical value, then the federal policy of prohibition is constitutionally unsustainable. Also, the Court hinted that the substantive due process clause of the 5th and 14th Amendments, respectively, protects a legitimate medical marijuana patient from federal sanction. Moreover, the Court did not strike down the various State laws that recognize medical marijuana.

Law and order in this country means, among other things, federalism. Just because federal law does not recognize medical marijuana, that does not mean that the States have to do the same. What one entity may do, another may not. The local police who swear to abide by the United States Constitution swear to defend the 9th and 10th Amendments. These Amendments protect the right of States and of the People to do things like enact local medical marijuana laws as a matter of self-government. Critics of medical marijuana, if they are truly worried about law and order, ought to be worried about federalism and what their advocacy of blind federal supremacy, if successful, would do to that delicate balance established by the Framers of the Constitution.


Kenneth Michael White is an attorney and the author of “The Beginning of Today: The Marihuana Tax Act of 1937” and “Buck” (both by PublishAmerica 2004). Visit www.thebeginningoftoday.com for more information.