California's voters should approve Proposition 19

In November, California will vote in a statewide referendum on whether to legalize marijuana. I believe that the proposition in question, Proposition 19, should be approved. Many reasons exist, some of them compelling, for approving the use of a drug that many people nonetheless consider criminal. For me, the two most convincing are legal and fiscal: removing arbitrary criminal policy and relieving fiscal policy. First, California serves notice how the enforcement of marijuana law and marijuana use, whether criminal or medicinal, overwhelmingly affects the poor and minorities. In fact, with medicinal marijuana legal, enforcement of the current laws is very arbitrary: many poor blacks and Hispanics, for example, are arrested at will. Legalizing the whole class will help lessen some of the capriciousness in a very grey area of criminal law and policy. Second, California, like many other states, is facing a growing and unwieldy fiscal crisis. Illegality of marijuana costs the state directly through police work, and more so, indirectly through loss of potential revenue. The Proposition authorizes several revenue-generating provisions that should help alleviate California's budget problem. It is something badly needed for a small price to pay.

Of course many would challenge the Proposition, and polls are indicating that opinion is close to 50-50. Besides the moral and criminal arguments, a legal issue arises: will California's proposition legalizing marijuana conflict with the federal government's ban on marijuana? The Supreme Court's recent decision in Gonzalez v. Raich, which upheld the federal government's ban on marijuana, even medical, as a legitimate use of the Commerce Clause, should serve as a guide. Despite that broad and seemingly ineluctable precedent, I believe that the new proposition, if passed, may survive legal scrutiny. First of all, Congress has not expressly preempted marijuana regulation - many states have differing laws that coexist with the federal ban. Second, the proposition itself has few provisions that directly challenge the Congressional ban. Criminal use or drug trafficking will continue to be outlawed. Third, the proposition's revenue-generating aims also shields it from being struck down: states have a large leeway on laws that seek to raise money, as opposed to laws seeking to regulate. Finally, the proposition does not violate the mirror side of the Commerce Clause, the dormant clause that prevents states from inhibiting interstate commerce. Thus, I believe that should the proposition pass and then is challenged, which it doubtless will, the Supreme Court could in fact uphold it. Right now, the issue lacks ripeness but who knows, some day limited criminalization of marijuana might become a fact, a boon for California and most of us.