Voters of Colorado have spoken and made perfectly clear their desire for an end to prohibition of marijuana sales and consumption for recreational use.
Whether one agrees with this decision, it is clearly the will of the majority. By approving Amendment 64, voters said they wanted less government intervention in the relationship between individual and pot.
The decision initiates notable conflicts. It authorizes the Legislature to establish regulatory boundaries. It allows local governments to prohibit marijuana sales and consumption. It allows for an excise tax on marijuana sales to fund schools, and it allows commerce and consumption that is forbidden by federal law.
If the Legislature wants to tax marijuana, it will have to ask voters to comply with the Taxpayer’s Bill of Rights. It’s easy to predict voters would approve such a tax, as a majority of Coloradans — probably most who approved Amendment 64 — do not use marijuana. Majorities typically don’t flinch at an opportunity to tax a minority.
Unless and until voters approve a new marijuana tax, Colorado will have something more than legalized pot for sale at storefronts on Main Street. They will have duty-free marijuana sales. Colorado will become a destination for drug tourism whether marijuana is sold with or without a tax.
Federal intervention to stop casual buying and selling is unlikely. The federal government hasn’t the resources to do battle with small-scale marijuana commerce. Even Attorney General John Suthers, who opposed passage of Amendment 64, predicts minimal federal involvement.
“The federal government’s never been interested in prosecuting low-level possession. Even when I was U.S. attorney, I think we had a 100-plant threshold, and I suspect it’s even higher now,” Suthers told CNN anchor Carol Costello on Thursday.
Amendment 64 escalates a 10th Amendment issue that was on the table with medical marijuana. The 10th Amendment limits federal authority to that which is granted specifically by the U.S. Constitution, and nothing in the document speaks of authority to regulate drugs against the will of those who are governed by states. Courts have found every imaginable way to water down and negate the 10th Amendment by abusing the Constitution’s interstate commerce clause.
The Supreme Court upheld federal enforcement against state medical marijuana laws in Gonzales v. Raich, ruling that under the commerce clause the federal government may criminalize the production and use of homegrown marijuana even in states that have approved it for medicinal purposes. The majority in Gonzales surmised that high nationwide demand for marijuana could draw homegrown medical marijuana into the market, therefore affecting interstate commerce. Sure.
Recreational marijuana use is a bad idea. So is federal violation of a federal Constitution that’s supposed to protect states and individuals from federal intrusion. Advocates of legalized marijuana can thank practical limitations of government, rather than law, if Amendment 64 frees them to buy and consume the drug.
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