Marijuana and the Democratic Problem

This is a slightly expanded version of an editorial which appeared in the Wichita Eagle this morning.

This past Tuesday, when the Wichita City Council approved putting on the April ballot a proposal which would reduce the criminal penalty for adult possession of small amounts of marijuana to an infraction with a fine (essentially making it the same as a minor traffic violation), they did the appropriate thing. After months of work and much painstaking attention to detail, the many volunteers associated with the Marijuana Reform Initiative--some of which I'm happy to call friends, whose protests I have joined and whose petitions I have signed--had done exactly what the law requires, and the City Council recognized that.

It was interesting, however, as I sat in the City Council chambers and listened to the councilors’ comments (particularly as several of them spoke in what seemed to me to be a somewhat CYA-manner in regards to the "dilemma" before them), to be reminded how expensive and time-consuming and intimidating self-government can often appear to be.

Specifically, multiple members of the Council expressed consternation over the fact that the laws in question are “fuzzy.” Obviously, if the voters of Wichita approve this measure and the city government acts in accordance with it, instructing the Wichita City Police and city prosecutors to change their approach to this particular drug, the city will be in violation of state law, which categorizes marijuana possession as an offense deserving of a year in jail and a fine of thousands of dollars. (And or anything more than the first offense or mere possession, far harsher than that.) And yet, for them to simply dismiss this legally produced petition would also have been a violation of state law. Hence, their frustration.

But is a situation like this really one which calls for frustration? On the contrary, what we have here is rather simple: a group of citizens making use of the procedures legally available to them to directly initiate political action. As with any political action, taken by any means on any level of government, there always will be citizens organized–either directly, or through their elected representatives, or through various other established interests–to oppose them. That’s not surprising; that’s to be expected. It is the essential nature of mass democracy in a pluralistic society: many different groups, acting on behalf of many different agendas, using many different venues to pursue their goals. It’s combative and messy. For better or worse, under our present constitutional arrangement and with our present political culture, it couldn’t be any other way.

Does the fact that this particular political fight may involve the state claiming authority over drug laws and bringing an injunction against the city of Wichita mean that it’s different? More stressful, more irresponsible, and thus one to be especially avoided by our elected leaders? I can’t think of any principled reason why.

There are, to be sure, certain matters that probably shouldn’t cross from the legislative to the judicial branches of government or back again. (For example, I'm very doubtful of both the political wisdom and of the democratic benefits of attempting to force governments to recognize budgeting priorities through legal action, something we know all too much about here in Kansas.) But questions of criminal justice and penalties have, on the contrary, always involved fights in both legislatures and courts, and have been a particular target of direct citizen input and action for many decades. (Just think of death penalties cases, three-strikes-and-you're-out policies, mandatory sentencing, and many more.) This issue shouldn’t be any different.

(And I should emphasize, the issue here is not marijuana per se; the issue our often unaware attempts to shelter ourselves from democracy's messiness. To the extent that the fact we are talking about the personal possession of a small amount of a controlled substance here, I can only say, first, that this isn't--yet--about legalization, only sentencing reform, and second, as I wrote once before: "any defense of norms and traditions--especially prohibitory, paternal ones--has to be able to constantly respond to the changing, pluralistic flow of information all around us." Harsh penalties for a tiny bit of pot experimentation are contributing to a genuine social harm, that of mass incarceration. This is, in context, a good way to start pushing back on that.) 

I am most definitely not saying that I think every city council ought to challenge the authority of every state law, in the same way that I don't think state legislatures ought to make a habit of challenging the authority of the national government. There are all sorts of financial and constitutional--not to mention policy-related!--realities to be considered, and they might often suggest an acceptance of the status quo, or even encourage the recognition that in certain contexts general approaches may be well superior to particular ones. Even Thomas Jefferson, an arch-revolutionary and fan of local government if there ever was one, allowed that such was sometimes the case. (It would be nice if the Brownback administration, which never seems happier than when it is, on the one hand, throwing ideologically-motivated challenges at the national government, and on the other, stealing authority from local municipalities, considered those same points as well.)

But even given all those considerations, it remains the fact that, in our pluralistic and federal system, conflicts between different governing bodies are, as they say, a feature, not a bug. The number of variables that can come to play in these conflicts are huge and unpredictable. (What would be the content of any such injunction which the state government could lay on Wichita, anyway? Would they empower state police officers to come into Wichita arrest local police who obeyed the new local ordinance? Would they strip elected Wichita officials of their authority and jurisdiction, and replace them with appointees of their own? How would Topeka pay for that, anyway?) Like it or not, going forward with this vote is a step forward in the always evolving process of democracy. Clarifying “fuzzy” statutes and forcing a change in political agendas doesn't happen spontaneously; they will inevitably require clashes and challenges, and when the opportunity for such arises, they ought to be welcomed.

The concluding comments of one councilor during the meeting clearly implied that “being a good citizen” is the same as “not being in conflict with the state legislature.” If we all lived in small, authoritarian communities governed by consensus, perhaps that would be appropriate. But instead, we live in an environment characterized by adversarial conflicts, mediated through diverse political and legal processes. That's often not a particularly effective way to carry out mass democracy, but it is the system we have. And consequently, I think those who suggest that a legally produced vote on a technically invalid ordinance is the wrong step, and instead that everyone involved should be obliged to just appeal to the state government and wait for a "thaw" in the conversation about marijuana in Topeka, misunderstands: going forward with votes which force a question over just what truly is valid is exactly how conversations like that move forward. The people have done their political part; I hope the City Council, depending on what Wichita citizens choose, will be ready to their legal part as well.