The ACLU has come out against proposed regulations in Denver, Colorado that would criminalize use of the legal drug by making the “smell” of marijuana illegal. These unconstitutional rules create an environment where people are can possess the drug, but still may face legal consequences. Americans should remember that the state will continue to grasp with slippery fingers the last semblance of power it has over marijuana. The Constitution is a fantastic place to look for policy ideas, and the people will win in the end by challenging the constitutionality of marijuana laws like these.
As pioneers in marijuana legalization, Colorado has received praise from around the country for taking positive steps to reduce the harmful effects of the drug prohibition. Colorado Amendment 64 passed 53% to 46% on November 6th, 2012, and allowed the “personal use and regulation of marijuana.” This permitted private citizens over the age of 21 to posses under one oz. of marijuana and grow up to six plants for personal consumption. The newly proposed regulations put constraints on the exercising of that legal right, and makes the smell of marijuana in all public places illegal, regardless of it being smoked or not.
The state certainly has a right to control smoking in public parks, concert spaces, and pedestrian malls. But when the price of smoking in your backyard comes at up to a year in jail and a $999 fine, what’s the point of having something be legal? In New York City, possessing up to twice the illegal amount of Colorado (two oz.) is a misdemeanor that carries the same maximum jail sentence. If punishments are similar where marijuana is legal and where it isn’t, there is a question about how far legalization has really gone in Colorado. The law doesn’t say you have to be smoking; it makes simply possessing smelly marijuana a crime.
Denver’s Mayor Michael Hancock has supported these regulations. His spokeswoman said, “It’s really about protecting our families and our children in these public spaces,” giving a very broad definition of the word public. Mayor Hancock should stick to his principles and lock people up for a year and fine them $1,000 for leaving dog poop on the ground. The bacteria found in dog poop is far more dangerous than some lingering marijuana smoke, and it smells far worse as well. These regulations have nothing to do with safety, but are a way to marginalize marijuana users. They allow the state to maintain some control that they recently lost. It is just another example of how the government uses misinformation to distract from its marijuana policy.
As the economy of marijuana legalization grows, these regulations will become too burdensome to enforce because it will clog up the court system. These nonviolent offenders are not worth the time or money, and it will lead to violations of the Fourth and Ninth Amendments. Police will be required to enforce this law, and it will cause them to detain, search, and violate civil liberties on a daily basis. The Ninth Amendment, which states that individual rights not mentioned would be retained by the people, would be violated. Citizens in Colorado legally have a right to possess something; that doesn’t change because smells aren’t explicitly mentioned in the Constitution.
Colorado is most certainly liberalized in their marijuana policy, but issues like these will become more prevalent when more states begin loosening their laws. This is where the Tenth Amendment exhibits itself as a check on federal power.
States like Colorado and Washington pushing forth against destructive federal policy is exactly what the framers of the Constitution had in mind. While laws and regulations like the unconstitutional ones being enacted in Denver will continue to pop up even when the War on Drugs is over, the public is solidly for marijuana legalization. There is a ballot initiative being pushed in Alaska, and a bill being put forth in Rhode Island, a state that decriminalized pot earlier this year. The value of these state initiatives is high, and the Constitution is on their side.