By: The Fusionist
One issue raised by drug warriors about the legalization of marijuana in various U.S. states involves the United Nations drug-control treaties, especially the 1961 Single Convention on Narcotic Drugs. This multilateral treaty requires the parties – including the United States – to ban a whole list of drugs, including cannabis. So the prohibitionists say that when Colorado, etc., legalize dope, this puts the United States in violation of the Convention.
The United States are (not “is”) a Union of states, so the question arises: How to reconcile compliance with the Convention with respect for federalism? The prohibitionists, including the bureaucrats at the International Narcotics Control Board, say that countries with a federal system must be held to observance of the Convention regardless of federalism considerations. Legalizers (including you-know-what magazine) say that the Convention allows for federalism and thus there’s no problem if Colorado, etc. choose to go their own way on marijuana.
In fact, the Convention seems to face both ways on federalism. On the one hand, Article 4 says member countries must “give effect to and carry out the provisions of this Convention within their own territories” without any mention of federalism. On the other hand, Article 35, while requiring member countries to adopt penal measures against drugs (including marijuana.), says that each member country’s responsibility in this regard is “[s]ubject to its [the country’s] constitutional limitations.”
The broad language of Article 4 does seem to militate against a country simply up and allowing legalization of any of the substances which are supposed to be banned. The federal government, with its responsibility for foreign affairs, would be in an awkward position explaining to the international community how our country remains committed to “carrying out” the cannabis ban “within [the United States’] own territories” even while many of the constituent parts of our federal Union are making it legal. This would be particularly awkward when the United States government was a leader in pressing for this drug Convention in the first place, rebuking other countries for their alleged softness in the prohibitionist cause.
On the other hand, the answer to this problem is not for the federal government to trample on our Constitution in order to please the United Nations – either with a tortuous reading of the Commerce Clause or under the guise of passing enforcement legislation under the treaty power. Even if we make the dubious assumption that the Supreme Court was right about Congress’ power to override federalism in the name of enforcing treaties, it’s not clear that the Supreme Court’s decision allows the complete abrogation of federalism to enforce this particular treaty. Since the penal article of the treaty, at the very least, allows us to respect our own “constitutional limitations,” it seems a bit circular to say that Congress has to pass penal legislation to stay in compliance with this article.
I’m sure President Trump stays awake nights contemplating this dilemma. So let me offer a suggestion – why not respect the rule of law like Bolivia did?
The Bolivian government was a party to the UN Narcotic Convention, and faced a similar problem to ours. Out of respect for the rights of indigenous peoples (which is kind of like federalist principles, if you think about it), Bolivia legalized the chewing of coca leaves by these peoples, apparently a traditional practice. But the Convention apparently required coca-leaf chewing to be criminalized.
Instead of doing fancy legal footwork to try and claim they were complying with the Convention, Bolivia pulled out of the Convention altogether, which Article 46 of the Convention allows. Then Bolivia re-ratified the Convention, but this time they attached a reservation that the indigenous practice of coca-leaf chewing could remain legal. Some countries, including the U.S., objected to this reservation, but there weren’t enough objections to make any legal difference, and Bolivia was accepted back into the Convention subject to its coca-leaf reservation.
(Fun fact: “socially liberal” Sweden was one of the countries which unsuccessfully objected to Bolivia’s coca-leaf reservation, declaring that “the ambition expressed in the convention is the successive prohibition also of traditional uses of drugs.”)
So let’s assume that President Trump’s drug-war zeal is stronger than his skepticism about multilateral treaties, and that he wants the U.S. to stay part of the UN Narcotic Drug Convention. All he needs to do is pull out of the Convention, and then ask the Senate to re-ratify with a reservation that lets us legalize marijuana.
Now, in such a case, I’d be cheering for the Senate to reject the treaty as a violation of U.S. sovereignty, not to mention dubious policy, but in that case Trump’s hands would be clean, he would have made clear his drug war bona fides without going full retard about it.
Citations:
Catechism of the Catholic Church
Fourth Commandment and Fifth Commandment
“The UN Drug Control Conventions: A Primer”
“Bolivia Rejoins UN Drug Treaty, Sans Coca Ban”
“Does Marijuana Legalization Violate International Law?”
Catholic disclaimer:
“2211 The political community has a duty to honor the family, to assist it, and to ensure especially…
“- the protection of security and health, especially with respect to dangers like drugs, pornography, alcoholism, etc….
“2291 The use of drugs inflicts very grave damage on human health and life. Their use, except on strictly therapeutic grounds, is a grave offense. Clandestine production of and trafficking in drugs are scandalous practices. They constitute direct co-operation in evil, since they encourage people to practices gravely contrary to the moral law.” (from the Catechism)
As the great St. Thomas Aquinas showed, the state is not bound to forbid all sins, and until recently, Catholics have not been prohibitionists. As for protecting the family from drugs, I would say that the state should step in only in cases of clear harm, like when someone’s abuse leads them to neglect their family responsibilities, but that the Church should intervene pastorally even earlier than this, to keep Catholics (or non-Catholic beneficiaries of Catholic charity) on the straight and narrow.
