Legalization of Marijuana: An Issue of Federalism?

Alaska has joined Colorado and the State of Washington in legalizing the recreational use of small amounts of marijuana.  Legalization in these states does not, however, totally liberate recreational marijuana users from the proscriptions of the law.

While it is now no longer illegal to possess small amounts of marijuana under state laws in Colorado, Alaska or the State of Washington, possession of any measurable amount of marijuana remains illegal under federal law.  Thus, the reform of marijuana laws gives rise to a conundrum.  You can toke away in Aspen, but you could wind up with a federal beef.  Whether your conduct results in arrest depends on whether you are sharing your lift with a local cop or an DEA agent.

In an effort to minimize this disparity (and energize its base, which, if it is smoking marijuana needs some energizing), the current administration has decided not to enforce federal marijuana laws in those states which have legalized it.  However, this lack of enforcement does not completely resolve the problem of conflicting state and federal laws.  For starters, the next administration could reverse course and resume enforcement of the federal marijuana laws.  Also, if residents of a state which has not legalized marijuana can be prosecuted under federal law, they may be denied equal protection of the laws as against their fellow citizens who reside in a marijuana legal state.  Then, too, suppose a federal marijuana conspiracy investigation encompasses several states.  The federal government cannot very well prosecute the conspirators in Idaho, but not those on the other side of the border in the State of Washington.

Of course, debate on the issue of the legalization of marijuana has been heated for some time.  Ignored in this debate is the question of whether the federal government has any business in regulating the sale or use of drugs  in the first place.

The federal government is one of limited powers.  The Constitution grants to the federal government only certain powers.  Those powers not given to the federal government are reserved for the states or to the people.  A fair reading of the Constitution and of the practices in the early days of the Republic suggests that, with limited exceptions, the federal government does not have the authority to impose general criminal penalties, including penalties for drug possession and sale.  Regulating the sale and possession of drugs is left to the states which have enacted a full panoply of drug laws.  There is no need for federal duplication.

Visit any state courthouse.  Look at the criminal dockets.  They are lengthy.  Then, go across the street to the federal courthouse.  There are relatively few criminal cases.  This is because the states regulate theft, burglary, assault etc., and have done so, quite effectively, for centuries.

So, why does the federal government stick its nose into what is essentially a local matter, creating in the process two sets of parallel criminal laws?   And, the two sets of parallel laws do not have parallel punishments.  As a rule, the federal offenses carry greater penalties than their state counterparts.  Therefore, an offender’s punishment depends not on what he has done or how many times he has done it, but the fortuity of whether his offense was detected by state or federal authorities.  There is no logic there, right?

With the exception of proscribing importation of narcotics, which only the federal government can do,  and the regulation of drugs in the District of Columbia and in the territories, powers given to the federal government in the Constitution, there is no reason why the states can be left to enact whatever narcotics laws they wish, leaving the federal government to spend its trillions elsewhere.  The states are fully capable of regulating every other aspect of drug use and distribution, if they choose to do so.  If state lines are crossed, these cases can be investigated through multi-state task forces with or without the facilitation of federal authorities.

Let’s leave narcotics laws to the states.


One thought on “Legalization of Marijuana: An Issue of Federalism?

  1. Manuel

    Two stoners are walking down a railroad track totally wasted. One stoner says, “This is a really long staircase!” The other stoner replies, “I don’t mind the stairs, it’s these low handrails that are killing me.”

Comments are closed.