The Debate Over Legal Marijuana Is Also a Debate About States' Rights
Some scholars argue Congress has no constitutional authority to tell states what to do about marijuana.
Members of the Alaska House of Representatives recently passed a resolution asking the federal government not to crackdown or interfere in any way with states that have legalized marijuana of which, of course, Alaska is one. Voters there have approved cannabis for medical and recreational use. A total of 30 states have legalized medical marijuana, while eight have done so for recreational use.
The House passed the resolution unanimously. Gov. Berta Gardner also has voiced opposition to U.S. Attorney General Jeff Sessions’ recension of Obama-era policies that protected states with legal marijuana operations from federal government interference.
States that have legalized marijuana are embolden to defy the federal government by the Constitution's Tenth Amendment, which declares states have authority over any matter that the Constitution has not specified is a matter for the federal government. That amendment, the last of the Bill of Rights, is central to the debate over whether state's can make marijuana legal if federal law declares it illegal.
Public discourse on marijuana legalization at the federal level has only seriously considered the options of Congress making it legal or, conversely, empowering some sort of crackdown. But some are now arguing for a more streamlined approach: simply have the federal government get out of the issue entirely. It’s a notion that has brought together people on both sides of the political fence.
A good place to start in understanding cannabis legalization is by reading the Constitution, which you can do right here. It’s not all that long. The Tenth Amendment is simple but sweeping, stating: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In the build up to the Civil War, southern states argued the federal government had no authority to tell them to end slavery. The same argument was used by southern states to defend segregation during the Civil Rights Era, but state’s rights factor into issues as diverse as same sex marriage and speed limits. A good example of the Tenth Amendment dividing powers between the states and federal government is the legal drinking age. The federal government, for public safety reasons, will withhold some federal highway funds from states that set their drinking age younger than 21 but Congress has never tried to pass a law setting the drinking age nationally at 21.
In short, not all power is centralized in the federal government. The Tenth Amendment has empowered states to launch marijuana programs even if it remains illegal at the federal level.
Just let it go.
In The Atlantic earlier this year, writer Conor Friedersdorf argued that marijuana regulation should be left completely to the states. The federal government, he argued, should just let the issue go.
Cannabis has reversed the usual state’s rights debate. As noted by Friedersdorf, typically it is conservatives who argue for state’s rights. But with cannabis, it has been progressives who have argued the matter is rightfully for states to decide. They contend Congress should remove marijuana from Schedule 1 of the Controlled Substance Act and let states to regulate marijuana. Interestingly, that argument appeals to people on both sides of the political fence.
In the National Review, editor Charles C.W. Cooke wrote, “If Colorado or Oregon want to legalize weed while Mississippi and Utah ban it, that’s fine. In fact, that is how the country is supposed to work.” The U.S., he wrote, is a collection of states and “not a giant centralized democracy with fifty regional departments.”
Whether this notion wins out remains to be seen. And whether Congress legalizes marijuana nationally, enforces current federal law or turns the matter over to the states, it’s becoming increasingly clear that at some point it will have to do something when it comes to legal pot.