Pot tale of the week
The Las Vegas Review-Journal last week reported, “Pat Hickey, Nevada coordinator for Smart Approaches to Marijuana … said legalizing the drug would break legal tradition; America, he said, has never legalized marijuana.”
In fact, it is a tradition of English law—on which most U.S. law outside Louisiana is based—that “Everything which is not forbidden is allowed.”
The Latin phrase nulla poena sine lege (no penalty without a law) reflects this view. Basically, it means you don’t need a law to make something legal. You need a law to make it illegal. There is no Nevada law making prostitution legal, but it is legal in the small counties on a local option basis because it is not against state law there. Only in the two urban counties is it illegal under state law.
While there may be a distinction between unlawful and illegal, it has little relevance here. The fact is that for most of U.S. history marijuana was legal by virtue of not being unlawful, although city councils, state legislatures and Congress had decades of opportunity to outlaw the plant and did not do so. Some of the founders, indeed, planted and harvested hemp themselves. (There are reports we were unable to confirm that, earlier, in the British Jamestown Colony of Virginia in 1619, farmers were required by law to plant Indian hempseed.)
Not until the 1860s did Virginia City, Nevada, and San Francisco, California, enact anti-drug measures, directed against opium, inaugurating the practice of prohibition that has been such a smashing success. And marijuana remained legal until long after that. Congress, in fact, took actions to regulate it while keeping it legal, which is what the Nevada initiative petition seeks to do. In 1906 the U.S. Pure Food and Drug Act required labeling of over-the-counter medications containing cannabis.
Even the federal Marijuana Tax Act of 1937, enacted amid lurid and racist anti-marijuana newspaper campaigns, did not actually outlaw the plant. It taxed it oppressively and limited use to those who paid excise takes for certain uses. It specifically recognized and protected the medical value of the plant. However, some states—Nevada in 1923—had already outlawed marijuana by then.