A legalized marijuana cartel? No, thanks.

Photographer: Brent Lewin/Bloomberg

Ohio Rejects Pot, But Its Constitution Gets Weird

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Pot is news, and Ohio voters’ rejection of an amendment to legalize marijuana Tuesday deserves the headlines it’s gotten. But a more important story is easy to miss: Those same voters amended the Ohio Constitution to make it very difficult for future initiative promoters to give themselves a monopoly through the state referendum process.

The new amendment was targeted at the marijuana growers, who wanted a monopoly in exchange for having advocated legalization. Yet the new amendment is an important example of a very unusual constitutional phenomenon: an entrenching amendment that makes future amendments much harder.

QuickTake Marijuana Legalization

The proposed pot amendment, called Issue 3 on the Ohio ballot, was going to legalize marijuana use and simultaneously create 10 facilities with the exclusive right to grow and distribute the drug. To gain control of one of those facilities, investors had to donate $2 million each to the ballot initiative campaign.

The 10 facilities would've operated independently, to create some economic competition; they wouldn’t literally have been a monopoly. But in economic terms, they would've constituted an oligopoly: a group of actors who collectively dominate the market to the exclusion of all others.

If this sounds a little strange, that's because it was. It's fairly unusual for a ballot initiative to be designed so that it would directly benefit specific individuals or corporations named in the law itself.

In practice, referendums somewhat frequently operate to the benefit or detriment of particular actors, who then spend money on them. In my own state of Massachusetts, a 2008 referendum that banned greyhound racing effectively shut down the two remaining dog tracks in the state -- and didn't affect any other businesses directly. A 2014 referendum on casino gambling allowed specific projects approved by the state to go forward. In both cases, the parties who stood to gain or lose spent money promoting their desired results.

But in the Ohio case, the buy-in coupled with the exclusive license described in the initiative was particularly egregious.

In response, opponents of Issue 3 proposed Issue 2. This was an amendment to the Ohio Constitution restricting what can be accomplished by voter initiative. It says that the referendum process may not be used to grant a monopoly, oligopoly or cartel for the exclusive financial benefit of whoever proposed the amendment in the first place.

At first blush, this amendment would seem to create a mechanism that would absolutely block some future amendments passed by the initiative process. But notice that this creates a potential internal contradiction within the state constitution.

Under the Ohio Constitution, the initiative process can be used to change the constitution. That means it could, logically speaking, be used to change the constitutional provision prohibiting its use to change the constitution.

If your head is spinning now, there's a bit more to come. To avoid this possible internal contradiction, the new amendment allows future proposals of constitutional initiatives that would create monopolies, but imposes a new condition on them. If the Ohio Ballot Board decides that a proposed amendment creates monopolies, it must frame the ballot question to say, “Shall the petitioner, in violation of … the Ohio Constitution, be authorized to initiate a constitutional amendment that grants or creates a monopoly, oligopoly, or cartel?”

In other words, any future monopoly-creating initiative would have to be approved by voters who are being asked if they wanted to violate the state constitution -- not simply change it.

This is an example of what constitutional scholars call “entrenchment.” The most extreme form of entrenchment is a constitutional provision stating that certain parts of the constitution can't be amended at all. A famous example is the constitution of Turkey, which says that its first three provisions can't be amended. These include the guarantee of a secular state as well as “the nationalism of Ataturk,” the founder of the modern Turkish state. The Turkish Constitutional Court has come close to banning the governing AK Party on the ground that it proposed constitutional amendments that would’ve derogated from the unamendable provisions.

Ohio’s new provision doesn't go so far as to make the state constitution unamendable. But it makes certain kinds of amendment by initiative harder than others.

Is this good constitutional design? The advocates of the new amendment probably didn't much care. Their goal seems to have been to defeat the pro-pot Issue 3. Had both initiatives passed, the new entrenchment amendment might have simultaneously reversed the legalization initiative. The designers of Issue 2 were trying to allow voters to signal that they opposed the marijuana cartel even if perhaps they favored legalizing marijuana use.

As written, however, the entrenchment amendment is overkill. It's very strange, even incoherent, to tell voters that a proposed amendment is “in violation” of the constitution. That's especially true when, technically, the constitution would allow the amendment.

In a sense, the new amendment is telling the Ohio Ballot Board to lie to future voters. This version of the entrenchment amendment should therefore be repealed. But practically, the only way that will happen is if somebody wants to create a monopoly, which isn't a great scenario. Expect Ohio's new amendment to stay on the books, a puzzle for future students of comparative constitutional law, and a source of confusion to Ohio voters of the future.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net