Take, if you will, cannabis sativa – better known as marijuana It’s in the news because the states are continuing to legalize it for medical and recreational use, despite federal prohibition. But Donald Trump’s executive branch is making noise that it will begin more vigorous enforcement of federal laws prohibiting it.

This is in the news at the same time as the issue of sanctuary cities, with some local and state governments saying they will not enforce federal law against undocumented immigrants. Could the states also choose not to enforce federal prohibitions against marijuana, particularly if the state law allows it? The Constitution is well-woven into these issues, and even admitting that the wheels of law spin slowly, it very much feels like we are in a time of change.

The standard legal analysis of a possible constitutional issue is to examine whether the Constitution gives the federal government the authority to make law in that area. That has been the way federal powers have been examined since the beginning of the Constitution, though in recent decades government power has grown in every direction, often ignoring the very deliberate constraints of the Constitution. But, if we are to entertain the rather unfashionable traditional view of federal power, it is quickly clear that the federal government gets only “enumerated” (or specifically spelled out) powers, and the rest belong to the States and the People mainly via the Tenth Amendment.

It can hardly be emphasized enough that these quaint restrictions have been bent to the breaking point. With most federal laws relating to no actual enumerated power in the Constitution, the federal government has been forced to justify many actions by shooting through the loophole called the “interstate commerce clause.” The federal government points to its enumerated power to regulate interstate commerce, and then attempts to pass a lot of laws with little to do with commerce through that gap (losing spectacularly in a case where a federal law tried to create gun free zones around schools saying it could because of the interstate commerce clause).

Someone growing marijuana in their yard, though, is hardly interstate commerce. Indeed, it may never leave that address, let alone cross state lines. Add to that the fact that the Constitution clearly reserves “police powers”–the historic general authority to make laws about health, safety, welfare and commerce–to the states; they’re not delegated to the federal government. The fact is regulating marijuana is not a power the Constitution spells out as a federal one, so it is for the states to handle, or the people to keep for themselves via the Tenth Amendment.

Keep in mind that this plant existed at the time of the founders, as did others that had similar effects. And yet the federal government did not regulate them. Instead, they chose to leave it to the states, which, for the most part, also chose not to regulate it until the last century or so. Indeed, an early federal prohibition against marijuana, the Marihuana Tax Act of 1937, was later found unconstitutional on the grounds that it required self incrimination.  A new law was quickly put in place and the prohibition evolved from there, never really squaring with the fact that this is clearly an area of the law that should remain under state jurisdiction.
Further, even though the states can regulate it under their police powers, there is little room to argue that it is more unhealthy than alcohol or prescription pain killers. Both have killed tens of thousands, while marijuana has killed none.

Recently, the states, being closer to the people’s will than the nation’s capital, began to deregulate cannabis sativa and the federal government began to strengthen its stance. Medical and recreational use is legal in over half the states and the trend is definitely toward freedom in this area. However, a law and order administration is in power saying it will enforce federal prohibitions. The tension between states that are moving to legalize it and a federal government that is moving to more vigorously enforce laws against it may very soon spark a constitutional debate over its legally sketchy prohibition.

Bigly so.

Were that to happen, with popular support and states willing to stand up for their Constitutional powers, more than likely the prohibition argument will fall apart. And so, these federal laws, which ignore reality and defy our founding governing document, may in a few decades be gone in a puff of smoke.

And when that happens, liberty and a clear reading of the Constitution will prevail.

Latest posts by John D. Pierce, Esq. (see all)

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