Marijuana Licensing Restrictions Are Reminiscent of the Jim Crow Era

As marijuana legalization advocates across the country win political victories, controversy follows – mostly from entrepreneurs and minority groups who are left out of licensing opportunities. 

Currently, almost every state that has legal medical or adult-use marijuana programs limit the number of available licenses. Onerous application processes keep out all but the well-connected and well-funded elite. 

Most of these systems are created by ballot initiative campaigns funded by a small network of multi-state marijuana license operators and the consultants. They make money navigating the licensing processes that they have an intimate role in creating. 

Post-Civil War Restrictions on Marijuana: Unfair and Unjust

The left may talk about “social equity” and the right may talk about “free market” solutions. But there is an emerging consensus from those left out of legal marijuana commerce that these restrictions are unfair and unjust. Worse, they smack of the Jim Crow era restrictions from a darker time in American history that limited the economic and physical liberties of those freed by President Abraham Lincoln and his Emancipation Proclamation.

Following the Civil War, Southern states often created restrictions seen in today’s state marijuana licensing regimes, including: 

• Numerical caps on licenses creating effective monopoly grants to license winners
• Civil and criminal sanctions on unlicensed marijuana commerce
• Restrictions on who can own and operate licensed marijuana businesses

U.S. Senator Lyman Trumbull Stood Up for Civil Rights

In response to unfair restrictions, U.S. Senator Lyman Trumbull of Illinois, co-author of the 13th Amendment prohibiting slavery, advanced the Civil Rights Act of 1866. In a floor speech in the U.S. Senate, Trumbull said: 

“I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.”

Following the passage of the Civil Rights Act, Congress ratified the 14th Amendment, containing a number of protections for the economic liberties of all Americans. These include: 

• The Equal Protection clause, mandating that all Americans have the equal protection of the law
• The Privileges and Immunities clause, which stipulated that all Americans should have the full benefits of American citizenship. This was understood to include the right to make a living.

Slaughterhouse Cases Neutered Our Liberties

Unfortunately, in a ruling on what has become known as the Slaughterhouse cases in 1873, the Supreme Court neutered protections, but the logic behind the 14th Amendment’s defense of economic liberty continues to resonate. In his dissent, Supreme Court Justice Stephen J. Field said: 

“If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to a single individual. If they may be granted for twenty-five years they may be equally granted for a century, and in perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which animal food is prepared for market they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld.”

While ending the War on Marijuana may be a historic and monumental achievement for civil rights, we must ensure those rights include the promise of equal opportunity and economic liberty for all.  

Eapen Thampy is a lobbyist and civil rights advocate in Missouri