“Could marijuana be the gateway drug to federalism?” This was the title of a Denver Post article from January 2018. Following the last election, The Daily Caller carried an article entitled “Marijuana Federalism Won The 2018 Midterms.”
Congress once honored the division of governing responsibilities set forth in the Constitution, recognizing that power to regulate things such as intoxicating substances, workforce services, education, health care, and the like were matters reserved to the states. Sadly, bipartisanship in Washington these days often means ignoring these constitutional restraints. Overburdened by an increasingly centralizing national government, states across the political spectrum are now reasserting the constitutional powers reserved to only them—like the regulation of marijuana.
Since the election of President Trump, scholars, pundits, and policymakers on the left are dusting off the Federalist Papers and embracing the structural—not political—doctrine of federalism. They are reconnecting with the arguments of James Madison that “The powers delegated by the proposed Constitution to the federal government are few and defined. … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
They are returning to the Founders to support their case that “marijuana policy is one such object that should be determined by the states.” Marijuana policy is “an area where many on the left and right disagree, but where the left has rediscovered that state boundary lines mean something,” writes former U.S. Rep. John Hostetler, director of the states trust project for the Texas Public Policy Foundation.
“There’s plenty of common ground here between progressives and conservatives,” he continues, “at least as far as…agreeing that states should be free to seek their own solutions to the problems that plague us all.”
How Did We Get Here?
The Controlled Substances Act still designates marijuana as a Schedule I drug at the federal level, making it completely illegal to possess and distribute. However, if marijuana policy were reserved to the states, how did the Controlled Substances Act ever come about?
The story behind this question holds the answer for state leaders across the political spectrum to join together and meaningfully restore governing balance. The Framers designed our unique federalist system in order to amplify the governing voice of the American people, as well as to preserve the efficiency, effectiveness, and accountability of government that they demand. Perhaps Prohibition—the 18th Amendment—is part of the answer.
In 1917, Congress sought to regulate alcohol. Congress knew that the regulation of “intoxicating liquors” was a power never delegated to the national government in the Constitution. So, under Article V, two-thirds of each house of Congress proposed an amendment to the Constitution prohibiting “the manufacture, sale, or transportation of intoxicating liquors within… the United States and all territory subject to the jurisdiction thereof.”
Once ratified by three-fourths of the states, as required under Article V, this “prohibition” became the 18th Amendment to the U.S. Constitution. Prohibition gave rise to a black market for alcohol, which proved to be a bonanza for organized crime. Crime syndicates funneled illicit money into corrupting police, undermining the Prohibition amendment, and evading the law in general. The public was outraged.
Then the 21st Amendment came along. So, in 1933, again exercising its powers under Article V, Congress proposed another amendment, this time to rescind its Prohibition amendment. Beyond merely rescinding the 18th Amendment, the 21st Amendment also clarified that regulating alcohol was a matter reserved to the states and was prohibited only if “in violation of the laws thereof,” i.e., the laws of the states.
Prohibiting Marijuana through Taxes and Regulations
Fast-forward just four short years. In 1937, Congress sought to regulate “the importation, manufacture, production, compounding, sale, dealing in, dispensing, prescribing, administering and giving away of marihuana” throughout the United States.
This time, Congress completely ignored the constitutional amendment process. Instead, Congress concocted an elaborate scheme to regulate and penalize marijuana in the form of the Marihuana Tax Act. While not an absolute prohibition on its face, the act levied a tax “on all buyers, sellers, importers, growers, physicians, veterinarians, and any other persons who deal in marihuana…”
With the tax came a host of onerous regulatory requirements. Under Section 12 of the Act, “Any person who is convicted of a violation of any provision of this Act shall be fined not more than $2,000 or imprisoned not more than five years, or both, in the discretion of the court.” In 1937, a $2,000 fine was the equivalent of more than $35,000 today!
By calling their regulation of marijuana a “tax,” subject to an oppressive regulatory scheme and draconian penalties, Congress effectively prohibited all use of marijuana, in circumvention of the constitutional amendment process. Suffering the devastating effects of the Great Depression, Congress knew that states were asleep at the constitutional wheel. This crisis of history gave birth to the “shampoo formula” for amassing extra-constitutional power—usurp, lather, rinse, repeat.
After more than 40 years of getting away with constitutional “murder,” Congress expanded its “authority” over intoxicating substances yet again in 1970, superseding the Marihuana Tax Act with the Comprehensive Drug Abuse Prevention and Control Act, also known as the Controlled Substances Act. By this time, the shampoo formula had virtually supplanted the legitimate constitutional amendment process.
Meanwhile, reeling from the effects of the Great Depression, state leaders sacrificed duty for dollars, resulting in a chronic case of constitutional amnesia about preserving the healthy tension and balance of power by persistently pulling on the federalism tug-of-war rope.
Congress Stole Power It Ought to Give Back
Now that the states are pushing back in a concerted fashion, however, Congress is considering legislation that purports to grant “authority” to the states to regulate marijuana—a power that was never delegated to the federal government but was from the outset reserved to the states.
The U.S. House recently approved a budget amendment to block the Justice Department from interfering with states that have legalized marijuana for recreational use. Because this budget maneuver would only apply for the 2020 fiscal year, several members of Congress are sponsoring the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, S.3032.
The bill would recognize the legalization of cannabis and the U.S. state laws that have legalized it through their legislatures or citizen initiatives. Strengthening the Tenth Amendment is not just a noble sentiment for a message bill, it’s the sworn constitutional duty of all state and federal officers. However, strengthening the Tenth Amendment means honoring the constitutional restraints on congressional power, not “entrusting states” with regulatory authority that was theirs to begin with, and never in Congress’ power to give.
Imagine your reaction if your youngest child decided not only to blatantly violate his curfew, but also began ordering the bedtimes for his older siblings and his parents. Now imagine that this rambunctious child thinks better of his conduct and tells you he is going to let you, the parents, decide for yourself what your bedtime will be. How magnanimous is that?
We have come full circle from where the people delegated to their national government only “few and defined” powers, and reserved all other to the states or the people themselves; to a national government that has ignored those express limits and usurped the powers of the states; now, to a national government that purports to grant “authority” to the states that it never had under the Constitution in the first place.
The Way Forward: Real Federalism
Enlightened by his study of man’s relation to government throughout recorded history, Thomas Jefferson warned, “A departure from principle in one instance becomes a precedent for the second; that second for a third; and so on, till the bulk of the society is reduced to mere automatons of misery, to have no sensibilities left but for sinning and suffering.”
Fortunately, it’s not too late. Our friends on the left are shaking the cobwebs off of federalism, and taking real, bold action to restore state powers important to them. Perhaps it’s past time for us to awake and arise, join with our friends across the political spectrum, repudiate the shampoo formula of federal centralization, and restore the governing balance of powers which magnifies the voice of the American people and makes government actually work for them again.
If our friends on the left can restore state power over marijuana policy, imagine what restoring governing balance to the states over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” would do for the accountability, efficiency, and effectiveness of government.
The formula rediscovered by our friends on the left for restoring the governing voice of the people is not easy, but it is simple, as stated by Thomas Jefferson in 1791: “It is important to strengthen the State governments; … it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general government.”
So, to state leaders, as well as the people who elect them, here are your instructions for the federalism formula, the only known antidote to the federal shampoo formula: erect barriers at the constitutional line, lather, rinse, repeat.
A version of this article was originally published on the American Legislative Exchange Council’s blog, and is reprinted here with permission.