Could you apply to become a DEA agent? Nearly one in two wouldn’t even pass the admissions process, unless your youthful experiments with marijuana were deemed limited and experimental by the DEA. Over one in ten Americans who have or will consume cocaine would be better advised to not even bother. As Congress and the Controlled Substances Act face off against local State laws that allow medical marijuana use, we are faced with a medical, a law enforcement, and a public policy conflict. It used to be, and still is for some, a moral conflict as well, but this view is far less prevalent as measured by recent polls. Nearly half even favor decriminalizing recreational use of cannibis. Within the libertarian community there is support for the relaxing of restraints on this type of drug use, both for fiscal reasons, (the costly war on drugs), and under the banner of individual freedom as well.

Is the right of any individual, according to this view, to put what they wish into their bodies unconditional? Clearly not; even leaving aside the problem of minors consuming drugs, and not just cannabis, we place limits on drug use as a matter of social norms. Try coming to work at an air traffic control center high on crack, even in the insane case that it were legal. It may have happened, but one hopes any such event resulted in immediate dismisal. Try coming to any job high on any drug or drunk. Try consuming alcohol openly if you are pregnant. Beyond the debate over legality, society places conditions on drug and alchohol use as a natural reaction to the powerful effect they produce on those who consume them. Your landlord might evict you if you consume or grow marijana, for example. This is relevant to the battle between those states that have decriminalized cannabis use for medical purposes, (for now), and Congress and Federal law enforcement authorities. In a paper available at the Cato Institute’s site, Professor Robert Mikos of Vanderbilt University outlines in detail a legal way forward for liberalizing states. It deals with the anti-commandeering limitation on federal supremacy over state laws when the two are in conflict. By linking private, medical use of marijuana to possible, even likely, use of cannabis originally for medical use in interstate commerce — in other words for drug trafficking — the Supreme Court in Gonzales v. Raich deemed that medical marijuana use was “hopelessly intertwined” in the professor’s words with drug trafficking. This would seem to mean that the Controlled Substances Act preempts state attempts to decriminalize cannabis.

Not so fast says Professor Mikos. He introduces, or reminds us of, the anticommandeering constraint on the ability of Congress to preempt state laws. “Congress may neither dislodge states from nor keep states out of the state of nature” according to the professor. The state of nature defined as those private and societal forces which shape behavior and where “government has no distinct influence on behavior.” And guess what? In the state of nature, marijuana use would be “rampant.” In other words, Congress or Federal law officials are guilty of unconstitutionally overturning or disregarding state laws allowing for the decriminalization of cannabis, according to this view. If at some point in the future, the Supreme Court rules according to the principles outlined by Professor Mikos, it may mean that as a landlord you may have to tolerate a grow op in your building. And we may have another enormous medical problem that will saddle society with costs similar, if not quite as deep or widespread, to those that tobacco and alchohol cause. And maybe at that point, society will deem cannabis, whose smoke may contain over 50 carcinogens, almost as evil as say, tobacco.