Federalism and Cannibis -How the Ninth And Tenth Amendments Won at the Polls

When Congress overrode President Wilson's veto of the Volstead Act in 1919, it unwittingly launched careers of now notorious criminals.  Federally prohibiting the manufacture, sale and transportation of intoxicating liquor (but not consumption or use for scientific and religious purposes) was an unmitigated disaster culminating with the 21st Amendment in 1933. 

Entire communities of brewers and distillers lost everything to Prohibition and then the Great Depression, bracketed by loss in two World Wars.  The American people protested these ill conceived laws through bootleggers and speakeasies (romanticized now but often dangerous in their time) by unlawfully manufacturing, selling and transporting all manner of intoxicating liquors which had been a legitimate business just moments before.  But, the mostly small, independent commercial producers of beer and spirits could not fight back leaving empty, boarded up buildings in formerly profitable neighborhoods.  The repeal of Prohibition came too little, too late to revive the lost businesses. 

The entire movement in opposition to alcohol would baffle the Colonists and Revolutionaries who imbibed on a regular basis.  Indeed, with no water purification system (or understanding of waterborne illnesses), alcohol was safer to drink than water.  It never would occur to them that any government - state or federal - would seek to restrict intoxicating drink or even medical drugs.  What could be more personal an individual freedom than the choice of what to - or not to - ingest?  

The Volstead Act leaves a legacy in the federal government's war on drugs, a war that may have met its match; the people are fighting back.  The shot heard round the world came this time from Colorado and Washington in ballot initiatives granting legalization (not decriminalization or medical use, but full on treat-marijuana-like-alcohol-and-cigarettes legal).  The federal government is in a tizzy (it's a war, afterall) and so a "conservative" House of Representatives will scramble to figure out how to control state action over a drug that is not known to cause much harm, if any, and has its roots and relatives in our American heritage.  Just let that sink in; those who chatter about principles of federalism to restrict rights will contest those same ideals when those principles enlarge rights.

Industrial hemp is a weed, not terribly unlike its banned cousin, which was used to make everything from paper to fabric to rope for the burgeoning shipyards from the earliest of Colonial American settlement.  Indeed, there are texts indicating that failing to grow this important crop was itself a criminal offense.  While hemp brought American industry to new heights, it did not have a similar effect on the populace as it has no intoxicating properties.  The cannabis associated with smoking and laughing and Jazz and hippies was not widely available until about the time of the Missouri Compromise.  Marijuana may have even gained prominence during Prohibition but was criminalized shortly after alcohol regained its place in polite society.  It is as though the federal government is unhappy unless it is punishing some type of intoxicant.  Today's question is not whether the federal government can enact such laws but whether the federal laws pre-empt the new state laws.

The national prohibition on cannibis has essentially eliminated all commercial growth of hemp despite its long history in this nation and the remarkable qualities of the plant. Undeniably, the people of Colorado and Washington spoke to recreational use of marijuana, but the implications reach far beyond the borders of those states and far beyond their intent.  Their initiatives will necessarily spark - for both liberty interests and commercial concerns - a new conversation about the role of the federal government in conflict with and as constrained by the Ninth and Tenth Amendments. 

Federal drug laws live, for the moment, in the Commerce Clause, permitting even the federal prosecution for home grown plants where states have medical marijuana use laws.  But, the Chief Justice has called this line of argument into question since he did not support the Affordable Care Act under the Commerce Clause.  Indeed, the valorous creativity of the Warren Court's use of the Commerce Clause to ensure equality was always a tenuous and easily challenged argument.  What may be a shield cannot be a sword; federalism, and justice itself, demands the protection of individual liberty as against an encroaching government.

The Ninth Amendment acknowledges that the Constitution does not enumerate all rights, and that there are rights retained by the people. See, i.e. concurrence in Griswold v. CT, 381 U.S. 479, 492 (1965)  Ballot initiatives often express the voice and life of the Ninth Amendment.  Surely the Framers understood a right to the integrity of one's own body including what substances one might ingest and which ones one might refuse.  And, intoxicating drink was certainly prevalent even in the colonies.  It would be difficult to imagine Hamilton or Adams or Madison or Jefferson seeking to micromanage individual's consumption of any particular product.  As to the question of marijuana (or any drug) legalization, it appears have some resonance in the Ninth Amendment.

But, the big guns will be reserved for the Tenth Amendment: the retention of power by the individual states where no such power is delegated to the federal government.  For example, Colorado and Washington will develop some regulatory mechanism for marijuana.  There are privileges and immunities clauses within Art. 4 and the Fourteenth Amendment of the Constitution.  Query whether those in a national park located in one of those states could be treated differently from those in a state park or city sidewalk.  And if there is a difference, who trumps whom?  There are no enumerated powers in the federal constitution in regard to controlling intoxicants; this one should bounce back to the states.  That is, given the flimsy ground upon which the federal drug laws stand, they should bow to state legalization.
 
While the insidious and destructive war on drugs has wreaked havoc on American neighborhoods and entire populations for far greater offenses than recreational use of marijuana, the good people of Colorado and Washington may have started a revolution with their decisive votes.  The results of the ballot initiatives could restore to farmers the opportunity to grow industrial hemp, a plant that, among other uses, has the power to assist America in its quest for energy independence.  And, it could be the catalyst to end federal control over the criminalization of drugs; reverting all power therein to the states or to the people.

Valid, vibrant federalism arguments, such as those mounting in Washington and Colorado right now, can and should thrive.  States ought to be individual laboratories for growth and change and progress providing more freedom than does the federal government.  And, unless specifically enumerated powers rest exclusively in the federal government, it should have no ability to restrict freedoms provided by the states.  That is the greatness of the federalist ideal.  The invidious misinterpretation of the doctrine of federalism, those often self-named "states rights" movements which aim to restrict individual liberties by state action are necessarily doomed to failure as they were 150 years ago.  But, unless the national government will secure and protect all liberty concerns, then marriage equality, broad educational mandates, single payer medical coverage, and even legalization of previously banned substances are and ought to be the province of the individual states.  As the red states and blue states work this out through a purple haze, federalism lights up.