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Marijuana Legalization and Federalism

by Wes Messamore, published

For centuries now Americans have made several truly unique, earth-shattering, game-changing contributions to the world, often in the form of ideas. One of those ideas is Federalism: government doesn't all have to be in one place or consist of a single monolithic body. There can be multiple levels of government with distinct jurisdictions, roles, and responsibilities.

In fact, the single question at the forefront of American history, its controversies, its struggles, and its wars has been the proper nature of Federalism and the relationship of the various United States to each other and to the Federal government formed by the U.S. Constitution. That's why Thomas Jefferson would have a lot to say about California's upcoming ballot initiative to legalize marijuana.

You see there's a lot more at stake here than the legalization of pot (though Mr. Jefferson would take a keen interest in that matter too as a cultivator of cannabis himself). It would appear that the initiative, which should hit the ballot box in 2010, may run counter to Federal laws regulating the distribution, possession, and use of marijuana: "The measure would allow people 21 and older to grow marijuana for personal use and to possess up to an ounce. It would also allow licensed suppliers to grow and sell marijuana (up to an ounce at a time) to adults."

Those Federal drug laws include the "Marihuana" Tax Act of 1937 and the Controlled Substances Act of 1970. So if California passes next year's ballot initiative (a likely possibility with recent polls placing 56% of Californians in favor of legalization)... what happens? Which laws take precedence, the State laws or the Federal laws? If the Federal laws are unconstitutional, in other words- if the Federal government does not have the Constitutionally enumerated power to regulate marijuana use- then the State laws take precedence.

When this happens, it's called nullification, the idea that a state has the right to declare Federal laws null and void because they overstep the boundaries set by the Constitution. That's where Thomas Jefferson comes in. Unfortunately, many Americans associate issues like states' rights, nullification, and secession with militant, Southern separatists, racism, and slavery. But these important issues have a strong and enlightened advocate in America's Third President and the author of American Independence (i.e. secession) from the English Crown- Thomas Jefferson.

In the Kentucky Resolutions of 1798, Thomas writes:

"1. Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

More concisely: because the states formed the Constitution and are equal and voluntary parties to it, they are the ultimate judges over it and it is their prerogative to determine when it has been violated and whether or not to comply with Federal laws and policies. It is not ultimately for the Supreme Court to decide, since after all, the Supreme Court was created by the Constitution, and the Constitution was created and is therefore to be interpreted and enforced by the States.

So the Supreme Court's decision in Gonzales v. Raich- which allows Congress to regulate and/or ban the use of cannabis, even for medicinal purposes- should not and does not take precedence over a decision of the State of California to allow the use and possession of cannabis, if it is the determination of that state that the Federal government has no legitimate Constitutional power to regulate drug use.

And that's the bigger issue here. Not only are the individual freedoms of Californians to make a personal decision at stake (not to mention a great way to deal with the state's budget crisis), but the very nature and composition of our Union is at issue. Next year's ballot initiative will represent a direct challenge to Federal authority and it is important to understand the underlying legal and Constitutional history and context. Knowledge is power, and now that you know- share the message with others so that Californians and Americans will be educated and prepared to have this discussion when the time comes.

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