Republicans sure do love their “war on drugs.” During the Obama administration, Senator Ted Cruz (R- TX) chided the president for failing to enforce federal drug laws, even though his administration spent more on marijuana enforcement in just his first term than Bush and Clinton combined. Now that Donald Trump is president, Attorney General Jeff Sessions has pledged to renew the national war on drugs and target marijuana.

But according to the Constitution, does any administration have the authority wage a “war on drugs?” Can the federal government, in conformance to the Constitution, prohibit the production, distribution and use of marijuana? If so, do the federal laws trump those of the states? If not, is there a means by which they can be made to supersede state regulations that may be in conflict with federal law?

21 United States Code section 811 sets forth provisions of the Controlled Substances Act (CSA). The Drug Enforcement Agency’s website places controlled substances regulated under federal law into five categories, called “schedules.” Pursuant to federal law, marijuana is considered a Schedule One drug, in a class with substances such as heroin and LSD. In determining which category a particular substance falls, the code requires certain factors be considered. By classifying marijuana as a Schedule One drug, the federal government has concluded marijuana 1) has a high potential for abuse 2) has NO accepted medical benefit 3) cannot be considered safe.

Article VI, Clause 2 of the Constitution contains the Supremacy Clause, which reads as follows:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Emphasis added)

So, according to the Supremacy Clause, federal marijuana laws must be made in pursuance to the Constitution – meaning, the States must have delegated the power to regulate this plant. A perusal of Article I, section 8 (powers delegated to Congress) indicates the States delegated no such power to the general government. Accordingly, the Tenth Amendment thus becomes operative:

“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.”

Presently, states have regulations acknowledging various freedoms regarding marijuana use, ranging from regulated use for medical purposes, to allowing for regulated (meaning taxed) recreational use, to decriminalizing the possession of small amounts of the plant.

So, we currently are faced with two issues: first, states are ignoring federal law, and second, there is an inconsistency in laws among the several states. This raises the inquiry as to how to approach this situation. Must there be one national approach to dealing with marijuana, or is it acceptable that state laws are varied?

During the Philadelphia Convention, James Madison and Edmond Randolph proposed a strong central government. James Wilson was also supportive of this system which would effectively render the States mere subsidiaries, or as Alexander Hamilton wanted, corporations, an abandonment of their sovereign nature. The Virginia Plan never made it to the ratification conventions, and according to James Madison in his Federalist #45, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” [Empahsis added]

In Federalist #39, James Madison also stated that the act of establishing the Constitution was not a national, but a federal act.

Based on the foregoing, one must conclude that there is no constitutional authority vested in Congress to regulate marijuana. So, is there a way the feds can lawfully continue to do so?

Article V provides for the process by which the Constitution may be amended. In fact, that’s exactly what supporters of alcohol prohibition did. The 18th Amendment was ratified on Jan. 16, 1919, when Nebraska became the 36th state to ratify. This amendment delegated to the general government the authority to prohibit alcoholic beverages, ushering in the Prohibition Era. Congress passed enabling legislation that came to be known as the Volstead Act to put the amendment into effect. It set January 17, 1920, as the first day of prohibition.

Here’s the $64,000 for supporters of federal marijuana prohibition. If it took a constitutional amendment to empower the federal government to ban alcohol sales and distribution, how is it that the federal government has the power to ban marijuana with no such amendment?

It’s clear that the only way to constitutionally fight the “war on drugs” is to amend the Constitution. The Constitution may be amended by one of two means: either both houses must pass resolutions calling for such by a 2/3 majority, or the States may do so also by a 2/3 majority. Either way, the proposed amendment must be ratified by ¾ of the States.

This raises another question: do we even want to do that? Do we really want to continue a “national policy” on marijuana?

Those who might support a marijuana prohibition amendment need to look back in history and examine what happened as a result of the Prohibition Era. Did the people stop consuming the proscribed beverages? No. Did more people suffer from improperly manufactured alcohol? Yes. Did alcohol become a lucrative product of the black market and result in a dramatic increase in crime? Yes, and yes.

The St. Valentine’s Day Massacre of 1929 is an example of the escalation of the gangland violence, power and the temerity of organized crime that thrived during the Prohibition Era. Although the 18th Amendment was repealed by the 21st Amendment in 1933, we are still experiencing collateral damage from this failed experiment in nationally-imposed morality.

And the expansion of national power inevitably leads to an even greater expansion of national power.

The National Firearms Act of 1934 was the predictable although blatantly unconstitutional response by Congress to the violence caused by prohibition. So, here we have a crisis created by government over-reach – more unlawful government over-reach. And the very same government is continuing this policy today, having learned nothing from history.

Do we really expect a different outcome if we go the insane, but the Constitutional route of amending the Constitution to prohibit the nationwide growth, distribution and consumption of a plant?

Or, do we act in accordance with the principles of true federalism and allow the states to decide for themselves this issue? If we chose the former, then we are accepting the notion that we are incapable of self-governance; if we accept that, then we have surrendered our Revolutionary Legacy.

Suzanne Sherman
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