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Here are two little-known fact about Proposition 19, the California marijuana legalization initiative on this November’s ballot. This isn’t the first time California voters have had the opportunity to repeal their state prohibition laws, nor is it the first time a state has shifted an enforcement burden unto the federal government.
In 1920, commerce in alcohol was outlawed nationally by the 18th Amendment and the federal Volstead Act, and by the laws of most states. Yet in 1932 Californians voted 3 to 1 to repeal the ban on alcohol prohibition, leaving production, distribution and sale of alcohol unregulated under state law. Voters decided: If the federal government believes so strongly in prohibition, then let them — and them alone — be responsible for enforcing it.
Californians weren’t alone in their rejection of federal prohibition. In total, eleven U.S. states eventually elected to opt out of this failing and ultimately doomed federal policy. In New York, Gov. Al Smith signed legislation repealing the state’s prohibitions on booze nearly ten years earlier, in 1923. New Yorkers were horrified with the rising level of prohibition-related crime taking place in their state among suppliers and distributors, as well as with the bilious brew that was being produced on the black market. The Governor declared that his signature produced no conflict with federal law, and explained how the cause of prohibition enforcement — and thus temperance itself — would be strengthened, not weakened, by the measure.
"The mere omission to maintain a state statute in no way abrogates a federal statute," he instructed. "Repeal … will not make legal a single act which was [previously] illegal."
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Besides, he added, state repeal would protect prohibition violators from "double jeopardy" — prosecution by both federal and state authorities. Now, "prosecution must be where it belongs — in the Federal Court." Citizens proposing to violate the law would apprehend greater consequence — indeed, the entire weight of the federal government — than the hand of local law enforcement.
For the remaining ten years of Prohibition speakeasies existed largely without incident in New York, but New York City was spared the level of crime and violence that plagued other large cities like Chicago and Detroit.
After the stock market collapsed in 1929, the election of 1932 offered a way out of the so-called "Noble Experiment." The incumbent, Herbert Hoover, defended prohibition; his challenger, Governor Franklin Delano Roosevelt of New York, unambiguously supported repeal. Roosevelt won by a landslide.
If voters approve Prop. 19 next week, the federal government will have a choice among three visible options. It can (1) raid farms and shops and prosecute non-medical cannabis cultivators, distributors and users in federal court, (2) exercise prosecutorial restraint, as it has for the most part with medical marijuana since 1996, or (3) get out of the way. This would be accomplished by the president requesting that Congress send him a simple bill respecting the right of states to regulate and tax the cannabis industry. It’s not complicated.
Proposition 19 will create some inconsistencies between state and federal law, just as there were in New York from 1923 and in California for the remaining year of Prohibition. And, there will be consternation, as always, among those who prefer the status quo. But the sky didn’t fall then, and it won’t now.