States Rights on Marijuana

In August of last year Senator Cory Booker (D-NJ) introduced a bill (S.1689), the Marijuana Justice Act of 2017, to legalize marijuana on the federal level. According to a press release, the bill would:

• Remove marijuana from the list of controlled substances, making it legal at the federal level;
• Incentivize states through federal funds to change their marijuana laws if marijuana in the state is illegal and the state disproportionately arrests or incarcerates low-income individuals and people of color for marijuana-related offenses;
• Automatically expunge federal marijuana use and possession crimes;
• Allow an individual currently serving time in federal prison for marijuana use or possession crimes to petition a court for a resentencing.

The bill was cosponsored by Senator Ron Wyden (D-OR) in 2017 and Senators Kristen Gillibrand (D-NY) and Bernard Sanders (I-VT) in 2018. The bill is languishing in the Senate Committee on the Judiciary.

A House version of the Marijuana Justice Act (H.R.4815) was introduced on January 17, 2018, by Representative Barbara Lee (D-CA). Now cosponsored by twenty-eight House Democrats, the bill has been referred to multiple House committees and subcommittees.

Last month, Senate Minority Leader Charles Schumer (D-NY) promised to introduce on April 20—National Weed Day— a bill to decriminalize marijuana on the federal level. He hasn’t actually introduced it yet, and his office has no answer as to the questions of if and when the bill will actually be introduced.

What is different about Schumer’s bill is his appeal to federalism. According to a press release, the bill would “remove marijuana from the list of scheduled substances under the Controlled Substances Act, effectively decriminalizing it at the federal level” and “allow the states to continue to function as laboratories of democracy and ultimately decide how they will treat marijuana possession.” The legislation would “respect states’ rights” by maintaining “federal law enforcement’s authority to prevent marijuana trafficking from states that have legalized marijuana to those that have not.” It would also “maintain federal authority to regulate marijuana advertising in the same way it does alcohol and tobacco advertising to ensure that marijuana businesses aren’t allowed to target children in their advertisements.”

Said Senator Schumer, who “has long advocated for states’ rights when it comes to medical marijuana”:

The time has come to decriminalize marijuana. My thinking—as well as the general population’s views—on the issue has evolved, and so I believe there’s no better time than the present to get this done. It’s simply the right thing to do. This legislation would let the states be the laboratories that they should be, ensure that woman and minority owned business have a fair shot in the marijuana industry, invests in critical research on THC, and ensures that advertisers can’t target children—it’s a balanced approach.

Medical marijuana is legal in 29 states and the District of Columbia. Recreational marijuana is legal in 8 states and the District of Columbia. The possession of small amounts of marijuana has been decriminalized in 21 states and the District of Columbia.

But the federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act, with a high potential for abuse, no currently accepted medial use, and a lack of accepted safety for use under medical supervision. And under federal law, possession of marijuana is punishable by up to a year in jail and a minimum fine of $1,000 for a first conviction, with increasing penalties for subsequent convictions.

Schumer’s bill would simply leave it up to each state to make its own laws concerning marijuana—without having to worry about federal law superceding state laws.

This is federalism in action. This is States’ Rights in action. This is the Constitution in action. This is the Tenth Amendment in action. This is exactly what James Madison—the Father of the Constitution—promised in Federalist No. 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. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. 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.

Why aren’t Republicans lining up to support Schumer’s proposal?

In their platform, the Republicans refer to the Constitution as their authority. “We are the party of the Constitution,” they say. “All legislation, regulation, and official actions must conform to the Constitution’s original meaning as understood at the time the language was adopted.” Republicans say they believe in and reaffirm the fundamental principles of our constitutional system: limited government, separation of powers, individual liberty, the rule of law, federalism, and the rights of the people.

So, why aren’t Republicans lining up to support Schumer’s proposal?

Republicans also acknowledge that “federalism is a cornerstone of our constitutional system.” The Constitution “gives the federal government very few powers, and they are specifically enumerated; the states and the people retain authority over all unenumerated powers.”

Again, why aren’t Republicans lining up to support Schumer’s proposal?

Because they don’t believe a word of what they say in their platform, that’s why. They don’t believe in the Constitution, federalism, States’ Rights, the Tenth Amendment, the Federalist, individual liberty, personal responsibility, limited government, the free market, or the right of any American to do anything that’s peaceful as long as his associations are voluntary, his interactions are consensual, and he doesn’t violate the personal or property rights of others.

In article I, section 8, of the Constitution, there are eighteen paragraphs that enumerate the limited powers granted to Congress. Three things are perfectly clear.

1. The federal government has no authority whatsoever under the Constitution to have anything to do with marijuana.
2. The federal government has no authority whatsoever under the Constitution to be concerned with the medical or recreational activities of any American.
3. The federal government has no authority whatsoever under the Constitution to interfere with the eating, drinking, smoking, snorting, injecting, or inhaling habits of any American.

No matter what any Republican personally thinks about marijuana, marijuana usage, marijuana users, marijuana dealers, or marijuana traffickers, if he is to be committed to the Constitution and our federal system of government, then he must support any effort to stop or limit the federal government’s regulation or prohibition of marijuana.

Republicans can support the death penalty for marijuana possession on the state level if they want to, but on the federal level they must support a hands-off policy. Former congressman and Republican presidential candidate Ron Paul was the pioneer here, consistently arguing for federalism and states’ rights when it came to drugs and a host of other issues.

Now, we know that Senator Schumer is inconsistent. He doesn’t support decriminalizing all drugs at the federal level, just marijuana. He doesn’t support allowing the states to function as laboratories of democracy and ultimately decide how they will treat drug possession. But what Republican does either?

But when it comes to marijuana, it is Senator Schumer vs. the GOP.

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