Medical Marijuana Is a Classic States’ Rights Issue
By Bob Morris | 07/02/2012 | California, Elections 2012, Health Care, Issues | 36 Comments
Photo: Mykel Nicolaou / Rex Features
States’ rights is often seen as a “right-wing” issue, seeking to limit the power of the federal government on issues like gun control, immigration, and infamously in earlier years to oppose federal efforts to mandate desegregation and end slavery. States’ rights advocates say the Tenth Amendment reserves powers to the individual states that cannot be overruled by the federal government.
While states’ rights have certainly been used to justify the indefensible, like slavery, it’s important to differentiate constitutional issues from how states’ rights can be used to champion a particular cause. This has particular relevance now as many states have legalized medical marijuana, something the federal government is completely opposed to. Many on the left are now seeing states’ rights as an important issue in its own right and not just a code word for racism.
The federal government has shut down at least 500 medical marijuana dispensaries in California in the past eight months, claiming they were violating state as well as federal law. But states’ right advocates would say the federal government has no right to interfere in California and that law enforcement should be done by the state and local law enforcement not by the feds.
House Minority Leader Nancy Pelosi agrees with the states’ rights position, saying “I have strong concerns about the recent actions by the federal government that threaten the safe access of medicinal marijuana to alleviate the suffering of patients in California” adding that medical marijuana is “both a medical and a states’ rights issue.” Her statement, I think, represents a real sea change in attitude by liberals about states’ rights, considering they generally used to oppose it without question. The more our politicians can break out of lock-step partisan positions, the better.
The Economist scratches its head at the confused, contradictory agenda of the Obama Administration on medical marijuana. At first, the administration signaled it would not interfere with medical marijuana, then changed its mind, but is only sporadically enforcing the law in six federal districts while completely ignoring other districts.
States do not like it. Democratic and Republican legislators from five medical-marijuana states have written an open letter to Barack Obama to end the “chaos” and leave this matter to the states.
To all the good reasons for drug reform can now be added this classically conservative one: states’ rights.
States’ rights: it’s not just for conservatives anymore!
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36 Comments
Faith Eischen
07.02.2012
@faitheischen
A lot of dispensaries are in violation…many people obtain (illegally) medical marijuana cards to buy and then sell for profit. If states are not doing a good job of regulating, then the feds should get involved.
Brad R. Schlesinger
07.02.2012
@bradschlesinger
Unfortunately, ever since the New Deal, the Tenth Amendment has largely been relegated to a relic of the past. The Supreme Court had a chance to stand up for federalism, the Tenth Amendment, and the implicit right to privacy in the Ninth Amendment during the medical marijuana case of Gonzales v. Raich. But alas, “limited government hero” Justice Scalia, ruled that the growing of marijuana by a medical marijuana patient in accordance with California’s medical marijuana law for wholly intrastate personal use and consumption (not sale), was subject to federal regulation under the Commerce Clause — as the marijuana, Scalia said, could substantially effect the interstate market for marijuana if it the patient ever decided to sell the marijuana.
nyfarmerweedist
07.02.2012
@nyfarmerweedist
Hi Brad, remember though, the decision in Raich was a 6-3 Decision, even if Scalia had voted with the rest of the Conservatives on the court it wouldn’t made a difference. I was also pissed at Scalia at the time until I read his dissent. Although I don’t like his conclusion I cannot disagree with his logic. Wickard v. Fillburn is the law of the land and unless the court was going to overturn Wickard then precedent meant that he had to follow the logic of the current Commerce Clause jurispridence to its obvious conclusion.
One way to fight that idea is to convince people that Prohibition, which is what we have, is not the same as Regulation, which is what Government says its doing. That is the argument to make before the Court.
Brad R. Schlesinger
07.03.2012
@bradschlesinger
The Supreme Court can overturn their own precedent if it is determined to be bad law, which Wickard surely is. It was simply an instance of Scalia not exercising his moral judgement over the dreaded pot user, legal principles be damned. You are right that it was 6-3, but my main point was to call out Scalia for his hypocrisy and selective use of originalist interpretation. The issue of drug policy must be decided by the Congress. The Congress must repeal the Controlled Substance Act and legalize and regulate all illegal drugs. That is the only way to bring finality to the failed War on Drugs and the catastrophic consequences it has on people, economies, and the environment throughout the world.
Brad R. Schlesinger
07.03.2012
@bradschlesinger
*It was simply an instance of Scalia exercising his moral judgement over the dreaded pot user, legal principles be damned.
nyfarmerweedist
07.03.2012
@nyfarmerweedist
I don’t disagree that he included his moral judgment but the legal principles are there. The difference between him and me is that my moral judgment would have gone the other way, he merely answered the question that was asked. Did Raich have the right to ignore fed law because of medical need? He answered no, I would have answered that prohibition isn’t Constitutional and so therefore Raich had nothing to conflict with. But both Scalia and I would use basically the same logic.
nyfarmerweedist
07.03.2012
@nyfarmerweedist
Hi Brad, it is true they can overturn precedent but remember that originalists don’t like to unless they have to and also if you want the originalists on the court to overturn a precedent directly and that didn’t happen in Raich.
You say the issue must be decided by Congress well that is what Scalia’s concurrance forces. I don’t like it either but it is legally sound.
Brad R. Schlesinger
07.04.2012
@bradschlesinger
Legal principles can be contorted in any way a judge likes and the legal principles in Wickard are no good and not justifiable. The progeny of Wickard and virtually all the entire post-New Deal Commerce Clause jurisprudence is illegitimate. Raich cannot be legally sound because Wickard is not legally sound. Saying something is good law because the Court simply said so at one time is not something I endorse. When the Court makes a wrongheaded decision based on expansive readings of the Constitution, that decision’s progeny remains tainted as well. The Court can overturn any precedent it likes and easily could have held for Angel Raich by disassociating itself with the holding in Wickard. The Court could have repudiated Wickard, but did not. That does not make Wickard good law. When legislation is presented before the Court for a determination of its constitutionality, the presumption should always be with liberty for the individual. The role of the courts is simply to strike down those laws that are unconstitutional and overturn bad precedent. Raich=unconstitutional and Wickard=bad precedent. The legal principles in Wickard are, at least not to me justifiable, hence I do not acknowledge those principles legitimacy or soundness (but maybe thats the radical libertarian in me talking). My point in regards to Congress repealing the CSA is only because the courts will not do anything. I vehemently disagree with Scalia’s concurrence that it is not an issue for the courts to decide but rather Congresses. It most definitely is. That’s just his way of copping out of the issue because it was pot and not something else he has more sympathy for. Since the courts will not do anything (re: drug prohibition), though they should, Congress is the only one left to act. However, my preference is for the courts to tell Congress when they pass laws like the CSA that they have overstepped their boundaries, which wont happen because drugs are scary things to largely old, white, aristocratic, ivy league men. Try squaring Scalia’s opinion in Kyllo v. US with his recent decision in Kentucky v. King. Scalia rarely decides cases on the merits of the law, he makes legal opportunistic decisions based on his personal life, political, and cultural preferences.
Helen Schuenemann
07.02.2012
Is this to say we serfs can’t take care of ourselves? Of course the Feds do have the tanks.
Robert Schmid
07.02.2012
Before you can answer that question you must first ask on what basis the federal government can regulate drugs at all. If it can constitutionally regulate drugs then federal authority can overrule state authority.
Seth Green
07.02.2012
vote Gary Obama and Mitt looks a weed as coke they don’t understand it can help us in a number of ways
Karen Reaves
07.02.2012
The Gov Corporation of America does not want competition.
Mike Liberto
07.02.2012
Why? Because the country is run by criminal offshore bankers…
Ian Moody
07.02.2012
This is great. Thanks for posting. :)
John Gill
07.02.2012
It’s only a states’ rights issue if the powers that be think it is.
Robert Schmid
07.02.2012
However, after a brief search I admit that I can’t find the constitutional basis for federal authority to regulate intrastate drug use. From a practical perspective, de-federalization of drug laws is the only way that we could ever win a “war on drugs.” The only way to defeat the harm that drug abuse causes is through education and cultural reform. We need to allow 50 states to take 50 approaches to find out what works best. This monopolistic approach only serves the drug lords’ best interests.
nyfarmerweedist
07.02.2012
@nyfarmerweedist
Hi Robert, Federalism is what Libertarians like me have been saying we should follow again for a while, we are dismissed by the right and disliked by the left for it. But here is a moment we can all agree on.
Steven Cooper
07.02.2012
It was okay for obummer to use and sell, but you better not…
Jeffrey Mcdaniel
07.02.2012
We tried that “States Rights” argument in the South,didn’t work very well for us either.
Mike Dodson
07.02.2012
Who cares. Most of those places are a fraud.
Dan Zeller
07.02.2012
Obama certainly flip flopped on this. Corporate power is obama’s puppett master here, Big Food, Big Pharma, textile indutry and more.
Rick Chafey
07.02.2012
States’ rights??? LOL. I think a more pressing question is, “Can unicorns fly?”
Allan Carroll
07.02.2012
states rights was a nice theory ….. unfortunately, we got the fed. instead
Shaari Rogacs
07.02.2012
I think the government is afraid that there will finally be realization that Marijuana is no worse than alcohol. Drug companies will lose money because something is better than their products at controlling pain. The Federal government has to admit that their laws concerning illicit drugs need to be looked at. They could make a large amount of money by taxing the drug instead of making so many good people suffer.
David W. Carey
07.02.2012
States don’t have rights. People have rights. States have autonomy.
James Keiser
07.02.2012
But wouldn’t that hurt Dupont’s bottom line?
Lynn Bricker
07.02.2012
they should, but they don’t !!!
Mickey Parson
07.02.2012
Too much money in gun runnin’ and money laundrin’ to let the states participate.
Paul Grajciar
07.02.2012
Was this the same when the prohibition of alchohol was law?
Bob Morris
07.02.2012
@Bob_Morris
No, Prohibition was passed by Amendment which means voters in a majority of states had to ok it.
Mickael Malove
07.02.2012
I feel like anytime there is a borderline issue, such as is the case of marijuana’s status as a drug, it is best as a country that we error on the side of liberty. I would rather we topple down a slippery slope of freedom than tyranny, if both sides of the discussion were to be simultaneously believed. The FDA and/or similar federal oversight’s role should be to provide the research into the help and harm of the drug, and give the states, doctors and patients the right to decide whether they want to accept those risks, or those of a similar pain relief medication.
Kevin Konczal
07.02.2012
500 Dispensaries shutdown put thousands of low wage earners out of work and ill people can’t get the medications voters approved. And if you use the lame argument that it is being abused by people who aren’t really sick…Prescription Drugs are the MOST abused drugs by people (who aren’t sick but addicts) and the kids raiding mom and dads medicine cabinet…should we shut down all the Rite Aids and CVS’s based on said logic?
Greg Bard
07.02.2012
You know the Tenth gets a lot of attention. We need a Ninther movement to counter the Tenthers. We can solve a lot of these problems if we just respect people’s individual rights!
Alan Einhorn
07.02.2012
This is not exactly what the 10th ammendment does; but it says enough. Let’s stick to the exact truth; it will accomplish the same ends.
Billy White
07.03.2012
because the feds have a hard on for maryjane..they need to worry about other issues… but i guess there to friggin stupid… thats the gov for ya..
Faith Eischen
07.11.2012
@faitheischen
I disagree that this issue is a states right issue..