"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
- 10th Amendment of the U.S. Constitution
The stunning achievement of referendums in two states - Colorado and Washington - legalizing recreational use of marijuana creates an imperative for the federal government to establish a new national cannabis policy.
The federal government has already conceded, at least in part, the right of states to establish medical marijuana programs. Massachusetts voted election night in favor of becoming the 18th state to allow medical cannabis.
But the game changer is the vote by the citizens of Colorado and Washington to legalize recreational cannabis, with licenses for self-cultivation and allowing commerce and establishing other parameters for a sensible access system.
Treating cannabis as a legal intoxicant, such as the far more popular distilled, fermented and brewed spirits, is intuitive. The dangers of marijuana have been greatly exaggerated by governmental bodies for 75 years. Cannabis can safely be used for no better excuse than to relax and/or to sleep peacefully.
That the public has voted in favor of a commercialized/recreational system is important, as government has proven unresponsive and unyielding to calls to reform the system.
The federal government, which continues to classify marijuana as a dangerous, illegal drug, must now consider states' rights and the scientific data and determine the correct degree of societal control.
The federal government has four distinct paths it could follow.
First, it could continue to delay - by not rescheduling cannabis, by not saying or doing anything, by looking the other way. However easy this path is, it does nothing to address the many wrongs with the status quo.
The positive aspects of continued willful neglect would be that medical cannabis and the commercial cannabis industry would begin to be begrudgingly tolerated, perhaps allowed to flourish - until the federal government decides to crack down.
The second option is to reschedule cannabis, an incremental reform.
The Controlled Substance Act of 1970 codifies and provides health care professionals with guidance on all matters regarding controlled dangerous substances, from heroin to tramadol, from methamphtetamines to methylphenidate, and marijuana. But the Schedule I label currently applied to marijuana should not apply to any substance with medical acceptance and proven safety, albeit with abuse potential.
Rescheduling would bring medical control to marijuana. This would enhance the integrity of future systems by ensuring quality and appropriateness of use. Reclassifying marijuana as a Schedule III CDS would allow much-needed research and randomized, controlled clinical trials.
The downside of reclassification: Some people will still resort to accessing the drug through underground, illegal markets.
The third option is descheduling - removing marijuana from the dangerous drug list altogether. There is plenty of precedent. For example, immodium. Once a Schedule V like its sister drug, Lomotil, immodium was descheduled and went over the counter.
Only descheduling addresses the more complex matter of commerce-driven recreational marijuana. Descheduling says marijuana is not so dangerous that you need a doctor's note to smoke a joint. Where rescheduling maintains cannabis control in the hands of health care providers, descheduling allows the individual user relatively unfettered access.
It might prove politically difficult to deschedule. The knot of marijuana laws involves treaties from 1961, current drug law written in 1970, and members of Congress worried about the next election.
Lastly, the federal government could decide to defy the Colorado and Washington laws and the will of the people in those states. But the outcome of a campaign of defiance would be far from certain. The people have exercised their free rights, and they are the ultimate voice under our Constitution.
Dr. Jeffrey S. Pollack is a physician practicing in Mays Landing.