The Legalization of Marijuana

By: Kyle Panton

Photo Credit: Alida Miranda-Wolff

Photo Credit: Alida Miranda-Wolff

Over the last two decades, the prohibition of marijuana has been both a confusing and contentious issue in American Politics. Although, Federal legislation prohibits marijuana, states have been slowly legalizing the drug since 1996. The November 6th initiatives in Washington and Colorado are the most recent examples of this.  Legalizing recreational use, they are also the boldest. In the shadow of these initiatives, some are suggesting that the time to publically debate the issues surrounding marijuana prohibition has come. But has it really?  Can we truly expect the puzzle of Federal marijuana legislation to be solved anytime soon?

If one looks at the history of the subject, they’ll find that this “showdown” between state and federal legislators isn’t likely to happen any time soon. Why? Mainly because it has happened already, and almost all of the politically significant issues have been resolved. While the blatant legalization of marijuana may eventually be viewed as a zenith in the struggle between state and federal government, today the vast majority of these issues aren’t as convoluted as people make them out to be.

In contrast to popular belief, the issue of marijuana prohibition isn’t simply a social issue. Rather, marijuana prohibition is an issue concerning the balance of powers between state and Federal Government. Essentially, it revolves around states getting the right to determine whether or not marijuana is legal. On the surface this seems like a rather arbitrary right, in actuality, granting the states this right may grant them a plethora of new powers as well. All of which, would have to be stripped from the Federal government. This unveils discussions about prohibition for what they truly are, discussions about power.

There are two ways for the states to get the power to determine the status of marijuana.  The easy way, is for the Federal government to voluntarily remove marijuana from the Controlled Substances Act (the Controlled Substances Act lists marijuana as an illegal substance). This way the states can proactively prohibit pot, if they so choose, or do nothing and leave it legal.  However with this course of action there are no powers to be gained. Although states aren’t free to loosen restrictions places by the Federal government, they are always free to make those restrictions tightened.

The second way, the hard way, requires the states to contest the federal government’s right to prohibit marijuana use in the first place.  Naturally, when debating the powers of the federal government we must look to the constitution. Just as naturally, when debating the meaning of the constitution we must turn to the Supreme Court. This leads us to the most recent battle concerning pot prohibition, and half of the reason one probably shouldn’t expect any sort of legal battle anytime soon; the 2005 Supreme Court case Gonzalez vs. Raich.   

In Gonzales vs. Raich the Supreme Court was called upon to answer questions concerning the constitutionality of prohibition against the personal cultivation and use of marijuana. The article in contention, that is to say the article of the constitution that seemingly grants the federal government this power is Article I, Section 8, Clause 3, commonly known as the Commerce Clause (for those who are unfamiliar with the Commerce Clause, it is the part of the constitution that grants the federal government the power to “regulate interstate commerce”).

In this case the Commerce powers were never contested, though the implications of them were. Raich, a medical marijuana patient, argued that the Commerce Clause of the constitution did not grant the federal government the ability to prohibit personal cultivation and use of marijuana. Raich’s counsel suggested that though the Federal government can prohibit the trade of the substance between states, the ability to prohibit personal cultivation and use is a police power as opposed to a Federal power. Raich also posited that this was particularly true in the case of those who use the drug for medical, or life enriching means, as she did.  In essence, Raich argued that the government was overstepping the powers granted to it by the constitution.  By prohibiting personal use of marijuana in addition to the interstate commerce of marijuana she felt that the federal government had gotten out of line.

Obviously the court wasn’t swayed by this argument. If it had however, the significant implication would be that the power to prohibit personal use would then fall under the police powers of the state. Raich, being Californian, would then be free to use marijuana in compliance with California state law. However, when expanding one’s scope, this argument could affect a plethora of other legislation, in particular the other substances prohibited by the Controlled Substance Act.

Arguing on behalf of the federal government, the Departments of Justice (DOJ) posited that although the Commerce Clause didn’t blatantly enumerate the federal government with the capacity to prohibit personal use, the right to do so was implied. This is because, the DOJ argued, the power to regulate personal use of a commodity is absolutely essential to the regulation of interstate trade. The DOJ suggested that due to the nature of the market (capitalism) individuals who retain the right to cultivate and use prohibited commodities such as marijuana would inevitably be drawn to satiate demand for the product. That is to say, if you allow Californians to use marijuana there will develop a price at which many would be willing to break federal law in order to supply the demand coming from New Mexico. Thus, this phenomenon would undercut the federal government’s ability to regulate interstate commerce so dramatically that its power to regulate would effectively disappear, ultimately stripping the federal government of the powers that were enumerated in the constitution.

Considering the state of drugs in America today, it is obvious that Raich lost her case. Although it’s not the reason she lost the case, Raich’s record of providing medical marijuana to those without a prescription did little more than prove the DOJ’s case. Swayed by New Deal precedent, set by cases such as Wickard vs. Filburn, the court found for the DOJ, holding that the Federal government could prohibit the personal cultivation and use of marijuana even where states approve its use.

What Gonzales vs. Raich illustrates is that as little as 7 years ago the Supreme Court deemed that the Federal government retains the power to prohibit personal marijuana consumption. However this is only half the puzzle. While the fact that the Supreme Court recently settled conflicts over marijuana legislation may have eluded most people, the fact that marijuana is federally illegal likely hasn’t.

The question about the November 6th initiatives that has most people scratching their heads is probably best surmised in a very simple question. Is pot legal in Colorado and Washington or not? Ironically, mirroring the simplicity of this legal inquiry the answer is simple as well. No!

While the initiatives passed in both Washington and Colorado seem to suggest that recreational marijuana is legal, it is imperative to remember that the federal law hasn’t changed.  With this we have a new conundrum. What happens when Federal and State laws clash with one another?  Normally this question would be subject to pretentious political Facebook posts, awkward dinner conversations, and mindless inter-party political bickering over which law reigns supreme. Luckily, however this is one of the few issues the founding fathers actually solved for us.

When looking to Article VI clause 2 of the constitution, one will find what is often referred to as the Supremacy Clause. In essence this clause establishes federal law as “the Supreme law of the land.” Or, in terms of marijuana prohibition, grants Supreme power to the legislation of the Federal government. Thus, when revisiting the question: “is marijuana now recreationally legal in both Washington and Colorado?” we can understand why the blunt answer is no. Regardless of the legislation passed at the state level, if it conflicts with federal legislation the Supremacy Clause deems it moot. The recent legislation in Colorado and Washington, for better or worse fits this criterion.

In light of the Supreme Courts 2005 ruling the hopes of many concerning marijuana legalization are likely to be overshadowed. Despite these events, more states have “legalized” the drug, and more citizens are taking advantage of that “legalization” than ever before. There is no reason to think that the Nov 6th initiatives will be any different. For those who believe the consequences of breaking federal law aren’t worth the risk, the day your chance to smoke weed may be a far time off. While it’s possible that marijuana will be legal as soon as during the Obama Administration it’s unlikely that it will the case. So long as marijuana is federally illegal indulging in the drug will always carry something of a risk. However when considering the Federal government relies extensively on state sanctioned law enforcement to maintain marijuana prohibition the odds may be shifter towards the smokers favor.

Kyle Panton is a third year in the College double majoring in Public Policy and Politcal Science.