The most compelling argument for federally legalizing marijuana unconditionally, from the standpoint of legislative logic, can actually be extracted from the very law prohibiting marijuana use. Annotated in 21 U.S.C. 801 et seq., that law is the Controlled Substances Act (CSA). The crookedness of the CSA cannot be straightened out by any moral, social, economic or other reason for opposing unconditional legalization. Simply put, if the CSA is unsound, the entire legal basis for keeping marijuana illegal crumbles. So, whether you’re for or against legalizing weed, it’s worth knowing how the one law keeping weed unlawful is, itself, unlawful.
The Actual Legislation
Before assessing the legality of marijuana’s illegality, it’s important to know the laws right down to the letter. This requires examining parts of Title 21 in the U.S. Code (21 U.S.C.), in which you’ll notice that the federal government uses the spelling “marihuana.” Throughout this article, that spelling is maintained when citing and referring to legislation for the sake of the debate’s precision; in all other instances, the article uses the common spelling “marijuana.”
The following verbatim quotations, verifiable by clicking on the source materials’ links, establish the core of the legal argument for legalizing marijuana unconditionally:
- Definition of “controlled substance”: In 21 U.S.C. 802, the term “controlled substance” is defined as a “drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.”
- Definition of “drug”: In 21 U.S.C. 321, the term “drug” is said to refer to “… articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and … articles (other than food) intended to affect the structure or any function of the body of man or other animals …”
- Definition of “marihuana”: Included among the drugs specified in 21 U.S.C. 802 is “marihuana” (spelled secondarily as “marijuana” one time), referring to “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” In 2018, this section was amended to exempt “hemp,” which is defined in 7 U.S.C. 38 as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
- Definition of “Schedule I”: As stated in 21 U.S.C. 812, the following three criteria render a controlled substance’s CSA category Schedule I:
- “The drug or other substance has a high potential for abuse.
- The drug or other substance has no currently accepted medical use in treatment in the United States.
- There is a lack of accepted safety for use of the drug or other substance under medical supervision.”
When Congress enacted the CSA in 1970, the law established five categories (Schedules I through V) to place drugs into based on their medical utility and their potential for abuse and dependence. As explained by the Congressional Research Service (CRS), the framework “broadly aims to protect public health from those risks while ensuring that patients have access to pharmaceutical controlled substances for medical purposes.” For how noble that might sound, however, the CSA is widely regarded as the stand-in for the race-based Marihuana Tax Act of 1937 after the 1937 act was deemed unconstitutional and repealed in 1969.
Marihuana has been classified as a Schedule I drug since the CSA’s enactment in 1970, despite multiple petitions from stakeholders asking the Drug Enforcement Administration (DEA) to reschedule or de-schedule it. Under federal law, unless a statutory exemption applies (namely, U.S. government-approved research), most cannabis and cannabis derivatives are classified as marihuana and may not legally be used for medical or recreational purposes. As a result, all activities involving marihuana prohibited by the CSA are federal crimes anywhere in the United States – even where state laws have legalized medical or recreational marijuana.
High Potential for Abuse and Dependency
Overlooking the obvious pun, can one truly say that marijuana has a high potential for abuse? To answer that question, a basis of comparison is needed, given that one’s tendency toward substance abuse is influenced by many things and can’t be evaluated in a vacuum. To that end, let’s examine marijuana alongside alcohol.
What the Statistics Say
According to American Addiction Centers (AAC), to be diagnosed with Cannabis Use Disorder (CUD), “a person must manifest at least two of the 11 symptoms that the DSM-5 [Diagnostic and Statistical Manual of Mental Disorders, 5th Edition] sets forth, and they must occur in the same 12-month period.” And according to the National Center for Drug Abuse Statistics (NCDAS), approximately 10% of regular cannabis users develop CUD. On the higher end, Science Direct reports that 34.1% of cannabis users will develop CUD (called “substance use disorder” there).
AAC defines Alcohol Use Disorder (AUD) as a “medical condition characterized by an impaired ability to stop or control unhealthy alcohol use despite adverse consequences.” The criteria for mild, moderate and severe AUD are created by the American Psychiatric Association and published in DSM-5, the association’s manual. According to AAC, in 2021, 29.5 million Americans aged 12 or older (roughly 10.5%) met the diagnostic criteria for an AUD. This was up from 10.2% of that demographic in 2020, as reported by NCDAS. Once again representing the higher end, Science Direct reports that 37.5% of alcohol users will develop AUD (“substance use disorder”).
At both ends of the probability spectrum, marijuana and alcohol have nearly the same potential for abuse. Thus, if one is to claim that marijuana should be a Schedule I drug for its high potential of abuse, the same – if the law were applied equally – should be true of alcohol; it isn’t.
What the Laws Say
Alcohol, along with tobacco, is excluded from 21 U.S.C. 802 by name. From 802(6): “The term ‘controlled substance’ means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.” [Hyperlink added.] Those substances, however high their proven potential for abuse, fall under the federal legislation governing taxes, not drugs.
“The Congress finds that (1) drug and alcohol abuse are problems of grave concern and consequence in American society … [and] … (3) 10 million adults and 3 million children and adolescents abuse alcohol, and an additional 30 to 40 million people are adversely affected because of close family ties to alcoholics.”
Those numbers are from 1986, meaning that alcohol had been omitted from the CSA list of controlled substances 18 consecutive times, including its exclusion from the original CSA list. Pursuant to 21 U.S.C. 812(a), the CSA was to be updated semiannually from 1970 through 1972, and annually thereafter. Eighteen times, Congress decided alcohol wasn’t a public danger. Moreover, Congress made no mention of marihuana in 21 U.S.C. 801(a) where it reported its findings on psychotropic substances, even though marihuana is identified unambiguously in the list of hallucinogenic substances in 21 U.S.C. 812, Schedule I, Subsection (c).
No Medical Use
Given that this criterion and the third are scarcely distinguishable, the two are examined simultaneously in this subsection. For reference, the third criterion in 21 U.S.C. 812 is, “There is a lack of accepted safety for use of the drug or other substance under medical supervision.”
Medical Schedule I Drugs Besides Marijuana
Prior to reviewing medical marijuana, just to reiterate how contradictory the CSA is, let’s first acknowledge that several other CSA Schedule I drugs have routine medical uses too. Consider the following, noting that everything below is administered under a physician’s care.
Heroin. Medical heroin, more comfortably referred to as “morphine” and “codeine,” is a standard sedative prescribed throughout the respectable pharmaceutical industry. An article by Medical Economics explores this paradox in great detail. “Head” examined how socially acceptable that opiate is in palliative care in particular.
Lysergic acid diethylamide (LSD). LSD is used to treat anxiety, depression, psychosomatic diseases and addiction. As recently as 2020, a study published in “Front Psychiatry” concluded that “evidence to date is strongest for the use of LSD in the treatment of alcoholism.” (Acid is healthier than alcohol; let that sink in.)
Ecstasy (3,4-methylenedioxymethamphetamine). Ecstasy (aka Molly) is actually proven effective in psychotherapy. An April 2023 article from Verywell Mind covers the vast array of things Ecstasy treats, with a particular emphasis on social anxiety disorder and post-traumatic stress disorder (PTSD). Healthline reports that Ecstasy is more effective at treating PTSD than Paxil and Zoloft, the two legal drugs prescribed to treat PTSD.
Peyote. In the U.S., Native Americans use the peyote cactus both spiritually and medicinally. According to the ethnopharmacologist Christian Rätsch, their consumption of peyote often straddles both categories as they use the plant to “directly process the trauma of having land and life stolen.” Thus, whether for physical or psychophysical health, peyote does have an accepted medical use in the United States. And although Native American lands are “generally exempt from state jurisdiction,” according to the Bureau of Indian Affairs, the National Congress of American Indians provides ample evidence to the contrary.
Also, the U.S. Code of Federal Regulations makes it a point to address Native Americans’ use of peyote specifically. From 21 CFR 1307.31: “The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration.” So, as long as they don’t call peyote a “drug” while using it as a drug, Native Americans may legally consume peyote for said purposes.
It’s interesting, as an aside, that federally funded studies have concluded that peyote (and LSD, incidentally) doesn’t have a high potential for abuse. So, none of the three CSA (21 U.S.C. 812) criteria are met for peyote – and yet, there it is, in Schedule I.
The point is, multiple Schedule I drugs said to have “no currently accepted medical use in treatment in the United States” (21 U.S.C. 812) are used in the U.S. medicinally all the time. So, what does that say about CSA scheduling? If the CSA contains patently false declarations, should it still be in effect? And should marijuana’s legal status be upheld on account of something so faulty? And should people be imprisoned, fined and disenfranchised for breaking a law that breaks itself? These are valid questions for any law, not just the cornerstone of keeping weed criminal.
U.S. Government Knowledge and Use of Medical Marijuana
The epitome of irony in keeping marijuana as a Schedule I controlled substance for its lack of medicinal value is that the federal government itself holds a patent for a marijuana-derived health supplement, cannabidiol (CBD). Patent No. 6630507 CANNABINOIDS AS ANTIOXIDANTS AND NEUROPROTECTANTS was issued on Oct. 7, 2003, to the U.S. Department of Health and Human Services. The Securities and Exchange Commission’s record for the license of this patent plainly specifies the accepted medical use of this marijuana-derived product in the United States: “Public Benefit(s): Commercialization of this technology will benefit the public health by providing synthetic cannabinoid(s) and cannabidiol(s) based FDA [Food and Drug Administration] approved therapeutics to treat hepatic encephalopathy in humans.”
Also, the Food and Drug Administration (FDA) under the U.S. Department of Health and Human Services has approved one marijuana-derived drug and three marijuana-related drugs that are available by prescription: EPIDOLEX® for epilepsy and MARINOL® and SYNDROS for alleviating chemotherapy side effects. The FDA even approved one drug containing a synthetic substance that is structurally similar to THC but not present in marijuana, Cesamet™. According to a March 2023 CRS report, additional drugs containing marijuana-derived THC and CBD are being developed as well. An article published by the National Institute on Drug Abuse, another Health and Human Services agency, speculates on what those might be. So, this is current evidence, not an obsolete outlier worth discarding.
In addition, the U.S. Congress has been pressuring the DEA to expedite registration for marijuana researchers. The Medical Marijuana and Cannabidiol Research Expansion Act (H.R.8454), signed into law on Dec. 2, 2022, requires the Department of Health and Human Services to report on the therapeutic potential of marijuana for various conditions, such as epilepsy. For the full explanation of what else that act requires, read this CRS report.
For a drug that the U.S. government ardently maintains has no currently accepted medical use in treatment in the United States, marijuana sure does have a lot of current U.S. government-accepted medical uses in treatment in the United States.
Private Sector Evidence of Medical Marijuana
The federal government isn’t the only one that knows about medical marijuana; state governments and the medical industry are clued in on it too. The nation’s capital, 33 states and three territories in which medical marijuana is legal allow it for people suffering from, among other things:
- Alzheimer’s disease
- Amyotrophic lateral sclerosis (ALS)
- Crohn’s disease
- Multiple sclerosis and muscle spasms
- Severe and chronic pain
- Severe nausea or vomiting caused by cancer treatment
An April 2023 article in “Forbes” goes into great detail on how marijuana – not just CBD but THC too – treats those and other ailments. It bears noting, too, that marijuana has proven highly effective at treating alcoholism and other addictions derived from uncontrolled substances.
Once again, this emphasizes how unlawful the CSA is, in the truest sense of that adjective: going against ethical standards. The deliberately untruthful application of standards to something to which they don’t apply, and the conscious failure to apply them to things to which they do apply, reveals that there can be no legal basis for marijuana’s federal (conditional) illegality.
From this article’s analysis, one can conclude that the scheduling framework in the CSA is unreliable and unfit for use in nationwide legislation and any resultant criminal prosecution. The inconsistencies concerning the value placed on public safety as relates to substance abuse indicate that marijuana (“marihuana”) merits de-scheduling. Moreover, Title 21’s claim that marijuana has no accepted medical use in the U.S. has been disproven by none other than the U.S. government itself.
If the scheduling system is broken, the law is self-defeating. In such an instance, marijuana (“marihuana”) should be legalized by default – not for any political reason, not for how disproportionally certain races are targeted, not for its potential in funding the federal government through taxation, nor any other reason to be pro-herb, but for the integrity of the U.S. justice system. Even those who would never touch cannabis for moral or other reasons must see the value in that endeavor; after all, injustice is no less immoral than intoxication.
Epilogue: The Near-Term Future of Marijuana’s Federal Regulation
For decades, Congress has been addressing a range of issues related to marijuana’s legal status. Some of the issues mentioned by CRS are marijuana’s designation as a Schedule I controlled substance, financial services for marijuana businesses, federal tax issues for these businesses, oversight of federal law enforcement and its role in enforcing federal marijuana laws, and states’ implementation of marijuana laws. So, it’s not as though nothing is being done, lest that impression be made here.
CRS covers every de-scheduling proposal in detail in its December 2022 status check. The most recent is the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act, H.R. 3617), which passed the House in April 2022 and is currently pending before the Senate. Although its name sounds lofty, the act is really more about getting organized to discuss legalization. Basically, the representatives are asking for permission to discuss asking for permission sometime down the line … maybe. So, federal agencies still have a long way to go. And that’s where things stand.
Kathleen Hearons is a writer, editor, linguist and voice over actor from Los Angeles. She specializes in creative writing and research-intensive analysis and reporting.
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