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Marijuana Prohibition Loses Ground to Modern Federalism

by Brad R. Schlesinger, published

As a constitutional republic, the US system of government is designed on the principles of federalism. In our federalist system the federal government is one of enumerated powers and those powers not explicitly granted to the federal government are reserved to the states. The framers of the Constitution established this system through the Tenth Amendment, which reads:

"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."

As James Madison put it in 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. The former will be exercised principally on external objects, as war, peace, negotiation, 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."

While the powers of the federal government have been broadly interpreted and rapidly expanding over the last eighty plus years, diluting the very notion of federalism on which the US system is designed, there is one area of public policy where federalism is not only being exercised, but thriving-- and that is marijuana policy.

The federal prohibition of marijuana was enacted when the

Controlled Substances Act passed Congress in 1970. Since then, in keeping with the concerns of the lives and liberties of its people, seventeen states and Washington DC legalized medical marijuana, while fifteen states passed decriminalization measures. And despite the fact that the Supreme Court held in the 2005 case of Gonzalez v. Raich that growing marijuana solely for personal and medicinal consumption in compliance with state law is subject to regulation under the Controlled Substances Act, seven states passed medical marijuana laws since that decision, and Massachusetts and Montana have medical cannabis initiatives on the ballot this fall.

Undeterred by the federal government’s continuous ramping up of the war on medical marijuana, state efforts to push the envelope and even further liberalize marijuana laws continue beyond medical cannabis. Colorado, Washington State, and Oregon are all thumbing their noses at the federal government by placing marijuana legalization initiatives before voters this November. Even smaller efforts like Ohio’s recently-passed legislation decriminalizing most marijuana paraphernalia shows that states are continuing to chart their own path on marijuana policy.

By exercising their powers in accord with the federalist principles on which our country was founded, many states have stood up for the long forgotten idea that ours is a federal government of enumerated powers. More importantly though, those states that chose to liberalize marijuana laws by passing medical and decriminalization measures and the like, laid the foundation that will ultimately bring the federal prohibition of marijuana crashing down.

Drug warriors and critics of liberalizing marijuana laws attempted to whip up a frenzy about what would happen should marijuana be made more readily available for medical use. The most common criticisms from anti-legalization and medical marijuana opponents is that marijuana is as harmful and addictive if not more so than alcohol and tobacco, and making marijuana more accessible will thereby lead to widespread use and addiction. Critics further contend a whole hoard of other claims, including: marijuana causes severe health problems such as lung cancer and respiratory problems, that one joint places more tar in an individual’s lungs than a cigarette, it sends the wrong message to kids who will see the availability of marijuana as a sign that is okay to use and will do so at alarming rates, and incidents of driving under the influence will significantly increase.

In reality, these fears have been found to be completely unwarranted. Contrary to the aforementioned claims, breakthrough research shows marijuana is by far one of the least addictive drugs one can use and is undoubtedly less addictive (if it is at all) than alcohol and tobacco. Further, anyone definitively stating that marijuana is in fact addictive is being disingenuous at best. Nor has there ever been a documented case of someone getting lung cancer or dying from simply smoking marijuana.

But the greatest contribution of those states embracing federalism in passing medical marijuana laws is that the proper conditions were created to empirically gauge the baseless and arbitrary contentions of these critics about usage and public safety. Time and time again research continually shows there is essentially no causal connection between the passage of medical marijuana laws on the measures of reported marijuana use-- for both the general population and teenagers.

Indeed, some research even indicates, “reported adolescent marijuana use may actually decrease” after the passage of medical marijuana laws. Moreover, studies also show incidents of driving under the influence go down in medical cannabis states, conceivably because people are more apt to eschew alcohol in favor of marijuana. These reductions make sense, as marijuana is typically consumed in homes and private spaces, as well as the fact that “people who are high tend to be aware that they are impaired and compensate, while alcohol tends to increase recklessness and create false confidence.”

Thanks to federalism, the empirical research gathered shows the core arguments put forward by critics of liberalized marijuana laws-- namely widespread use and abuse by young people and public safety concerns on the road-- are without merit.

Those states deciding to disregard federal marijuana prohibition and respect the wishes of its people (especially independent voters, whose support for medical marijuana outpaces the other two voting blocks) by passing medical and decriminalization measures succeeded in essentially making marijuana banal. As new states seek to liberalize their own marijuana policies, and others look to continue the process, every time a medical marijuana, decriminalization, or legalization initiative passes it is just another domino falling in the face of what seems to be at this point, an inevitability.

When we look back years from now, when marijuana is finally legalized on a national level, we’ll thank those states who adhered to the principles of the Constitution and federalism and took the plunge first-- providing the rest of the country and world with valuable empirical data demonstrating that marijuana can be regulated and controlled like any other commodity without disastrous consequences.

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