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Tuesday, November 3, 2015

Is Ohio’s Initiative the Worst Way to Legalize Pot?

Should friends of liberty cheer or boo the measure?

A Terrible Way to Legalize Marijuana
By Jonathan Adler

I support the legalization of marijuana. I also believe that drug policy reform should proceed at the state level as much as is possible. So you might think I would support Issue 3, the Ohio marijuana legalization initiative on the ballot Tuesday — but I don’t.To my mind, Issue 3 is a particularly awful way to legalize marijuana possession.Issue 3 is a proposed amendment to the Ohio Constitution. (The approved amendment text is here.) On the one hand, the amendment would legalize the possession and use of marijuana by adults, and allow for the commercial sale of marijuana at licensed retailers.On the other, Issue 3 would create a marijuana “monopoly” (actually, an oligopoly) consisting of 10 producers who would have their exclusive rights to engage in the commercial production of marijuana enshrined in the state constitution. The campaign in support of Issue 3 — so-called Responsible Ohio — is predictably supported by those who would hold these exclusive rights. This is crony capitalism at its worst. (And I haven’t even mentioned the Issue 3 mascot, “Buddie.”)It is bad enough when state governments grant monopoly privileges to well-heeled or well-connected corporations. Enshrining such anti-competitive, cronyist measures into a state constitution, while simultaneously restricting the ability of state and local governments to enact responsive legal reforms, is even worse. Yet that is precisely what Issue 3 would do.There is a second marijuana-related measure on the Ohio ballot Tuesday — Issue 2 — that is designed to counteract the monopoly aspects of Issue 3. (The approved amendment text for Issue 2 is here.) Issue 2, by its terms, bars the adoption of monopoly or oligopoly measures in the Ohio Constitution. So it would seem that Issue 2 would prevent Issue 3 from creating a constitutional marijuana monopoly. Yet it is not entirely clear that this is what would happen if both Issue 2 and Issue 3 pass.According to Ohio Secretary of State Jon Husted, Issue 2 would trump Issue 3 because it would take effect first (being listed first on the ballot). I hope he’s right, but it seems that Ohio law is not entirely clear on this point.In other words, should both pass, the question will end up in state court. A legal fight over simultaneously-enacted-yet-conflicting state constitutional amendments would certainly be interesting, but it’s no way to adopt significant and far-reaching legal reforms.I would like to see marijuana legalized in Ohio, but I would also like to see it done the right way — and it is hard for me to think of a worse way to legalize marijuana in Ohio than to create a constitutionalized drug cartel.

Bad Legalization Is Better than the Best Prohibition
By Ilya Somin

I agree with almost everything co-blogger Jonathan Adler says about Ohio’s Issue 3 referendum initiative, which would legalize marijuana in that state if it passes, but only at the price of restricting legal commercial production of marijuana to a cartel of ten crony capitalist firms. But I believe he’s wrong about the bottom line.Issue 3 is badly flawed. But Ohioans should still pass it, because even a badly flawed legalization is better than the status quo. And when we evaluate ballot initiatives, the right standard of comparison is not with perfection, but with the realistically likely alternative, which in this is case is probably perpetuation of the status quo.Like Jonathan, I support marijuana legalization. And, like him, I believe that restricting marijuana production to a few politically favored firms is “a terrible way to legalize marijuana.” But restricting legal production to ten firms is still a major improvement over the status quo, which restricts it to zero. In addition, as Jonathan notes, Issue 3 would abolish legal penalties for the possession and use of marijuana by adults, and its distribution by licensed retailers. These are offenses for which thousands of people are arrested (and in some cases imprisoned) in Ohio every year. Ohio law provides for up to eight years imprisonment as the penalty for the possession and/or distribution of various quantities of marijuana. If it passes, Issue 3 would put an end these grave injustices. That’s well worth the price of creating a marijuana production oligopoly, especially since even that oligopoly is still superior to status quo law on marijuana production.Imagine that we are back in 1930 and the only politically feasible way to abolish alcohol prohibition is a law that allows only ten firms to legally produce alcoholic beverages. That reform would flawed, but is still preferable to full Prohibition, which led to the unjust imprisonment and death of many people. The same point applies to marijuana legalization in Ohio.Moreover, as Jonathan notes, the cartel aspect of Issue 3 might never come into force, if Issue 2 (which would forbid the inclusion of monopoly and oligopoly measures in the state constitution) also passes. While it is not certain that Issue 2 will pass or that it would negate the oligopoly provision of Issue 3 if it does so, the possibility that this might happen further reduces the potential downsides of passing Issue 2. Even if Issue 2 is defeated, or fails to negate the objectionable aspects of Issue 3, it is possible that the latter can be eliminated by future referenda.Admittedly, there might be a good case for voting down Issue 3 if the likely result would be the swift adoption of a better legalization measure. But that result is far from certain. While political trends suggest that support for legalization is likely to continue to grow over time, it might still take years before another legalization measure gets on the ballot, and there is no guarantee it will necessarily be better than Issue 3. When California’s Proposition 19 was defeated in 2010, it took several years to get another legalization initiative on the ballot in that state (which is finally likely to happen next year).I can understand opposing Issue 3 if you are opposed to marijuana legalization in general. But, if like Jonathan and myself, you generally support legalization, then there is every reason to support Issue 3, despite its flaws. Hopefully, Jonathan and his fellow Ohioans will pass it. In Ohio, as elsewhere, the best should not be the enemy of the good.

These posts first appeared at the Volokh Conspiracy.


  • ILYA SOMIN is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. 

  • Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western University School of Law. He teaches teaches constitutional, administrative, and environmental law.