Discovering the Root and Legacy of Brady v. Maryland

Brady v. Maryland, 373 U.S. 83 (1963) ("Brady") is an odd case to celebrate as some sort of coup for defendants.  Brady is more of a puzzle than an answer - it exemplifies in many ways the struggle between the three branches of government more than the rights of the accused.  It all seemed to start when the Judiciary made a ruling that the Legislature demolished and the Executive latched onto the Legislative determination until the Judiciary had nowhere to go...but the Constitution.  And that, in brief, is the story of how the Supreme Court ruled against John L. Brady and defense attorneys everywhere rose up in cheers.

As a bit of background, in 1957, the Court decided Jencks v. United States, 353 U.S. 657 (1957) in which it afforded broad discovery opportunities in federal criminal cases.  In Jencks, the Court essentially ordered that prosecutors open their files - defendants need not make a preliminary showing in order to see the evidence known to the government. 

[T]he petitioner was entitled to an order directing the Government to produce for inspection all reports...in its possession, written and, when orally made, as recorded..., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.

Jencks v. United States, 353 U.S. at 668-669.

The Court so determined under its powers to establish procedural rules in federal court, not under any specific article of the Constitution.  That opened the door for Congress to pass the Jencks Act, 18 U.S.C. sec. 3500 which is an odious and regressive, secretive rule placing incredible and unwieldy power into the hands of unelected federal prosecutors.  This, despite language in Jencks - harkening back to the earliest days of Supreme Court opinions - that the government has a choice: it can provide the evidence it has or it can let the defendant go free.  It cannot hold the defendant and deprive him of relevant evidence material to his trial. In Jencks, the Court ordered dismissal of any criminal charge if the government, "on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial." Id. at 672.  In response, the federal government created legislation protecting secrecy.  Because Jencks was not grounded in Constitutional law, but rather in the powers of the Court which - apparently can be trumped by the powers of the legislature - the Court felt bound in subsequent cases to uphold the Jencks Act for federal cases.

The Court got its chance to take back control of trials - and the fairness of trials -when Brady came down the pike.  Brady was a fairly pathetic case on the facts; but the Court used it to reclaim part of the reach of Jencks that Congress took away. While Jencks was meaty and profound demonstrating the infiltration of Hoover's FBI into unions and the Communist Party and the convergence of the two in order to prosecute people for their political beliefs, Brady was a ridiculous street crime case.  Criminal defendants routinely cite Brady to suggest that the Due Process Clause of the 14th Amendment requires all kinds of disclosures in discovery by the government (which Brady does not say).  

The better argument is that the government does have those obligations for all kinds of reasons, but not because of anything stated in Brady.  First, and most significantly, Mr. Brady lost in the Supreme Court and his state court case did not declare any kind of new rule.  Second, at its base, Brady is an anti-death penalty case, not a case about discovery or obligations by the state to criminal defendants.  Third, if there is a due process right, why does it place a burden on the defendant to request evidence and require evidence that is exculpatory only?  And, fourth, the aspect of Brady touted as decisional law is nothing more than dicta.  In its semicentennial anniversary year, it warrants a very good read...as does the state case it upholds.  But more importantly, the language of the Jencks case should be revisited with the gloss of constitutional principles because that is the case that talks about broad, unfettered discovery. 

Mr. Brady and his co-defendant, Boblit, were charged with felony murder and tried separately: 

It is conceded that Brady and Boblit lay in wait for the victim, William Brooks, placing a log across his private driveway, in order to obtain possession of his car and money. Boblit was armed with a shotgun and Brady with a pistol. When Brooks got out of his car, Boblit struck him in the head with the barrel of the shotgun. They placed Brooks in the car, and after driving a certain distance, they carried Brooks into the woods, where one of them throttled him with Boblit's shirt. Each claimed that the other had actually strangled Mr. Brooks. They concealed the body, and divided the contents of Brooks' pocketbook containing some $250. They abandoned the car near Lynchburg, Virginia. Boblit went home, Brady fled to Florida.

Brady v. State, 220 Md. 454, 456 (1959).

Brady was tried before Boblit.  Prior to trial, Brady's attorney moved for discovery including prior statements of Boblit.  He was given all but one: the one in which Boblit mentioned the actual homicide.  Brady's defense at trial was not that he was innocent; he confessed the murder...indeed he testified at his trial to the full contents of his confession.  The defense was solely that he should be spared capital punishment.  He was not.  After trial, conviction and sentence, he discovered (through means that are never discussed in either case) that Boblit had made a statement in which he admitted committing the murder.  In the meantime, Boblit had elected for a bench trial where he denied the actual killing.  He was convicted and sentenced to life in prison.

Post-conviction, Brady argued that the failure to provide him with the unsigned statement by Boblit violated his right to a fair trial.  The Maryland court agreed, kind of:

There is considerable doubt as to how much good Boblit's undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady's hands or Boblit's hands that twisted the shirt about the victim's neck. ... it seems to us...that it would be ‘too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.

 Brady v. State, 226 Md. 422, 429-430 (1961).

So, what the court actually said was had Brady known that Boblit confessed to strangling Brooks, he might have called Boblit to the stand.  Had Boblit invoked his privilege against self-incrimination, he could have called the officer who took the unsigned statement to the stand.  This information might have spared Brady's life, or it might not have.  Maryland decided the case on general due process principles - it never mentioned the 14th Amendment but it did cite to some Supreme Court precedent; it may have been ruling under its own constitution - it is really unclear.  The gist of the case was twofold: (1) there was a potential that Brady took the fall for Boblit in such a way that that must have been known to the government.  Thus, failing to correct, clarify or notice a potential error before the court violated due process and (2) that Boblit seemed just as guilty as Brady so having one die and the other live seemed wrong.  This was especially true because the statement was presented (although not accepted) in Boblit's trial and was utterly ignored in Brady's.  But, really the decision reads as: the government should have given the information to the defense because in the end it would not hurt the government's case; this guy was guilty and would be convicted; failing to provide it looks like bloodlust for capital punishment.

Therefore, Brady's death sentence was overturned in the state court but he took the case up to the Supreme Court to argue that the government violated his right to due process in failing to provide the evidence and therefore he was entitled to a new trial on guilt, not just a new sentencing.  He lost that argument. Even if the Supreme Court ruling is as broad as people think (it's not),  a thorough read of the case clarifies that the "holding" in Brady is nothing more than dicta, and, it is dicta seeking to regain the breadth of Jencks through a 14th Amendment portal after so much damage from years of bad federal cases under the Jencks Act.

In Brady, Justice White thought the correct federal question was whether denying Brady a new trial on guilt as well as punishment deprived him of equal protection.  Brady v. Maryland, 373 U.S. at 91 (White, J. concurring). The dissenting Justices Harlan and Black also stated that the equal protection argument was the sole issue before the Court - and that it should have been decided in the affirmative if the evidence were admissible at trial.  Their interpretation of the Brady decision fascinates, averring that (1) by state constitutional provision, trials in the state of Maryland allow for juries to be the judges of both the facts and the law (jury nullification), (2) that judges alone may rule upon admissible evidence, and (3) the state admitted at oral argument that the Boblit statement would have been admissible in court (which is different from what the state court actually ruled).  Had the Court addressed the equal protection argument, the course of history really would have changed.  There was a potential to correct the wrongs of equal protection jurisprudence from the turn of the 20th Century and to bring the equal protection argument into the criminal realm - an issue discussed at length here.

This interpretation provokes great thought not only on the equal protection argument but also on the due process of law announcement in Brady which is this:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Brady v. Maryland, 373 U.S. at 87.

This is a head-scratcher because there was little favorable to the accused in the Boblit statement.  The statement itself was highly questionable, it being unsigned; it really was not "material" to guilt or innocence (and indeed, the Court rejected the guilt or innocence argument outright).   It does not say that the government was obliged to provide the statement if no one asked for it, it said it was error to "suppress" it from the requested discovery.   It's really a stretch to say that the failure to give the unsigned accusatory statement was a due process violation.  That "holding" has nothing to do with the actual case.  Justice White was right; the claim on federal due process was advisory, not declaratory.

But history makes mythology.  Lawyers everywhere completely and totally misunderstand the Brady decision (and the fundamental divergence of due process and equal protection clauses of the 14th Amendment.)  For 50 years, disappointed practitioners have hung their hats on a holding that was not a holding in a landmark case that was not a landmark case.  In that time, the equal protection clause has faded from criminal jurisprudence.  But (in a strange twist) assuming due process and assuming a defense request and assuming materiality, because it was decided under the 14th Amendment, the case does not affect federal litigants even though it sought to reinstate Jencks which arguably would only have affected federal litigants. The Jencks Act is still good law.

Perhaps rather than due process or equal protection, defense attorneys should forge new paths.  The 9th Amendment talks about the rights of the people not being denied just because they are not enumerated in the Constitution.  Broad legal process and equal protection under the law was well known at the time of ratification - indeed the 1641 Massachusetts Body of Liberties required jury trial by clear and sufficient evidence of guilt and prohibited coerced confessions for all...and even prohibited animal cruelty.  The Massachusetts Constitution, Pt. 1 Articles 11 and 12 (ratified in 1780) discuss the broad rights of the accused to obtain fairness and justice with any crime or offense fully, plainly and substantially described to him which certainly suggests a broad right of discovery.  The language of the 6th Amendment seems to urge an open prosecutorial file as well by requiring that the accused be informed of the nature and cause of the accusation.  Limitations on state or federal power - and limitations on state powers by federal power - has its root in the celebration and protection of individual rights.  The Framers did not favor prosecutors any more than they favored those accused of crimes; what they sought was fairness.

It is terribly important to remember that John L. Brady lost his case before the United States Supreme Court when it upheld the Maryland court ruling - he wanted a whole new trial and the Court merely upheld the reversal of his death penalty nodding approval to the Maryland court's decision. Brady was not a case of innocence bastardized by an over-eager system.  Withholding the evidence in his case may - or may not have - affected his death sentence, but all of the judges felt comfortable with him spending his life in prison.

Because Brady was not a particularly substantive case, because it may or may not have asked a federal question, because it is so amorphous and unsatisfying, because it really does not say much, because it puts a burden on defendants that does not belong there by requiring them to ask for evidence that may or may not exist and for the government to determine what is or what is not exculpatory, practitioners would do their clients - and justice - a favor by going back to Jencks for advice; in Brady,  the Court seemed to do the best it could to get back there, but fell far short.

Questions about discovery in criminal cases have centered around due process, the weakest and least defined of all of the possible arguments available.  Without abandoning it it, rather than worry about the due process dicta/holding of Brady, practitioners should explore the equal protection guarantee of the 14th Amendment, the history of the rights known to the people prior to the ratification of the Constitution under the 9th Amendment, the meaning of the term "the nature and cause of the accusation" in the 6th Amendment as well as those rights enumerated and explained in state constitutions in seeking guidance for discovery arguments.Because, after half a century, it's clear that Brady has failed to safeguard criminal trials.

The goal when individual liberties clash against government power is to institute rules seeking an even playing field.  Where government has the power to curtail freedom, Americans want as fair a fight as possible.  The reason the Constitution requires full and open discovery in criminal cases is that each defendant must understand, in as complete a way as possible, the charges against him in order to present his defense.  Broad discovery is not a burden on government.  In the sense that it averts trial by subterfuge, it embodies due process of law; but the concept of due process of law is too vague.  It lets the government bring guns to a knife fight.

Postscript: after his case was dismissed, Mr. Jencks continued as a union organizer and sometimes actor; he died in 2005.  Boblit is still serving his life term.  And Brady - the man who wanted to strangle Brooks - he was never resentenced.  Why would he want to be when another jury could have sentenced him to death.  He was ultimately paroled; his whereabouts are unknown.

After 50 years of trying to get this square peg of due process into the round hole of justice, it is time to start working with different pieces in order to obtain the promise of jury trials where the defendant is not hamstrung in his defense and the jury has the opportunity to understand the evidence in an unbiased way. 

After 40 Years, It is Time to Declare Roe Wrong

40 years ago this week, Roe v. Wade became law.   It is largely believed by both "pro-life" and "pro-choice" groups to be a Supreme Court decision that "legalized" abortion.  That false, pervasive opinion has dominated the national scene for far too long.

The only thing Roe v. Wade did was muddy very clear waters.  Colonial women enjoyed the right to abort unplanned and unwanted pregnancies.  Indeed, abortion was a safer alternative than childbirth and it was an accepted practice.  The right to an abortion is inherent in the Ninth Amendment not created in the Fourteenth.  Roe is wrong not because it guaranteed safe and legal abortion, but because it failed to guarantee safe and legal abortion.

Abortion, a known and accepted practice since 1550 BCE,  became a crime in the Nineteenth Century after lobbying by the medical community as part of its quest to eliminate competition with midwifery. The medical community, however, was not as we may think of it today: there was no formal curriculum for medical school and no standardized testing until 1935.  While midwives shared knowledge gained over centuries, the folks who changed the abortion laws had gone to a semester or two of lectures and called themselves experts.   At common law, before a woman was "quick with child" (approximately 16-18 weeks pregnant), abortion was neither criminal nor abhorrent.  The folks who urged change did so primarily for paternalistic reasons (men must care for the frailty of women) and misogynistic reasons (the purpose of a woman, especially a married woman, was to bear and raise children), and financial reasons (midwives enjoyed, deservedly, much more trust and respect than physicians and this was one way doctors were able to corner a previously unattainable - and growing - market). 

In Massachusetts, over 200 years ago, when a single woman voluntarily sought a "draught or potion" to induce miscarriage and the man who impregnated her so provided it, he was tried and convicted of inducing abortion.  The conviction was overturned because (1) there was no evidence that any abortion occurred and (2) there was no evidence that the woman was "quick with child". Commonwealth v. Bangs, 9 Mass. 387 (1812).  An 1845 case relying on the judicial reasoning in Bangs declared outright that no common law offense existed for abortion prior to quickening.  Indeed, the decision expressed its opinion on the immorality of the procedure, but it denounced criminal sanctions when the woman consented and there was no evidence that she was quick with child.  Almost immediately after that case, at the behest of physicians (even then an influential bunch in Massachusetts), the general crime of abortion was born.   Interestingly, activists in the early 1970's were convicted of aiding and abetting abortions by facilitating safer options for women seeking termination of unplanned and unwanted pregnancies under that (still extant) law. In Massachusetts, abortion remains a felony to this day. 

But, what is shocking is that it was not the religious zealots or a Biblical concept of the beginning of life; the push to end the idea of quickening and life's nascence later than conception came from the physicians - the same ones who had essentially no scientific background and little education.  At the time this occurred, the majority of abortion seekers were white, middle class, married and Protestant.  Rather than develop better methods of birth control, the medical establishment dug in its heels against highly trained women providing abortions.  This opposition was not premised upon medical data or statistics on failed abortions or those resulting in death of the mother - it was based upon the idea that women who aborted ignored their duties of the marriage contract.  Doctors, in their own manifesto in 1871, averred that women should not be involved in public life and that by shirking maternal duties any woman seeking abortion was essentially letting her country down.

It was a time of great change; the Fifteenth Amendment had been ratified in 1870.  The Southern states were still occupied by Northern soldiers; and due to this occupation, African Americans exercised their voting rights for the first time.  Just months before the American Medical Association questioned the patriotism of women seeking abortions, Susan B. Anthony was arrested for trying to vote.  A few months after the AMA's declaration, Elizabeth Cady Stanton petitioned Congress on this pesky voting conundrum.  While the right to life community has sought to co-opt early feminists as anti-abortion activists, the reality could not be further from the truth.  With no offense intended to physicians today (although, really, they should acknowledge their complicity in the history), the truth is that the anti-abortion activists were those who were trying to make money; they had no concern for science.  The "life begins at conception" idea was fabricated by them, not religious doctrine, and sold as part of this unsavory bill of goods.  The push to criminalize abortion was a sham from the outset.  For an interesting and detailed article on law and the politics of abortion (where much of the above information was gleaned), click here.

The rise of the Nineteenth Century factions should have been beaten down by the other graces of the day: humanity, compassion, reform.  And if that was not enough, the Twentieth Century remnants  should have been met with logic, science and, eventually, the women's vote.  But, something went terribly awry.  Note in reading the full opinion of Roe v. Wade how Justice Blackmun rests on "medical" positions rather than law - the very same lunacy that started the criminalization of abortion was being sought to find a remedy.  Indeed, by failing to understand history, misconception implanted and grew into this destructive spawn, alive and well and destroying our country.  Rather than a reasoned approach to a simple legal question, the bizarre opinion widened a gulf that theretofore really did not exist.

Query whether the Court got it all manifestly wrong.  Abortion is not a protected right under the Fourteenth Amendment or any hidden, secret right to "privacy."  Abortion is a right retained by women, certainly those pregnant but not quick with child, that existed long before the Revolution and before the Constitution; it is one of the unenumerated rights which cannot be denied or disparaged under the Ninth Amendment.  It is curious that Justices White and Rehnquist, in their dissent from Roe v. Wade could find nothing in the language or the history of the Constitution to support the decision of the majority.  It is amazing what one cannot find when one chooses not to look.
Realistically, there was no prohibition to abortion before quickening recognized at the time of ratification.  The Ninth Amendment does not just kick the matter back to the states.  This is not part of the tradition of "states rights" and federalism, it is in the tradition of individual liberties which does not enjoy even state interference.  For the words of the Constitution to mean anything, the Ninth and the Tenth Amendments must mean different things.  The Ninth talks about rights of the people as individuals; the Tenth talks about the rights of the state to legislate.

There are serious and important issues facing this nation and the world, but criminalizing abortion - even talking about abortion - is not one of them.  Our confused nation insists on fighting wars we clearly cannot afford as we deny emergency assistance to our own citizens which we can.  Amongst other things, poverty, pollution, economic malaise, enforcement of civil rights and international kerfuffles that involve us whether we like it or not should take up most of the allotted time on the agenda.  Yet, folks talk about "limited government" as if it is 1789 and there are no roads or cars to put on them, no public water supplies, no air, water or noise pollution to control, no regulation of professional degrees or licenses, etc.  When the final vote was cast to ratify the Constitution, the Cabinet consisted of 4 posts (Secretary of State, Secretary of War, Secretary of the Treasury and Attorney General), 20% of the population was held in bondage BUT women had access to abortion without the interference by the state. 

Ensuring safe and legal access to abortions denies the government the opportunity to infringe upon liberty which sums up the notion of limited government in any event.  If America is to live up to even a portion of its promise, we need to start talking about things that matter and stop talking about things that do not.  40 years after nine men engaged in a bizarre and troubling decision residing in the then very popular Fourteenth Amendment when they could have settled matters in the Ninth - not as an issue for the states to infringe upon as they chose but as a matter that no government could deny or disparage, at least within the first 16-18 weeks of pregnancy which accounts for roughly 95% of all abortions in the United States - we are fighting harder and more divisively than we were when they rendered the decision. 

40 is a significant number to the Biblical crowd who now runs the country.  Moses was 40 when he first left Egypt.  40 years later, he returned to free the Israelites.  He toiled for 40 days on the Commandments; they wandered for 40 years - as the story goes - needlessly and due only to their own obstinance and idolotry - before reaching the land of milk and honey.  For 40 years we have been living with and yelling about and bullying each other over one well-intentioned but misbegotten decision.  In that time, we have gone from a fairly cohesive nation with relatively common values and reasonable politics to a polarized, contentious, maelstrom of inanity. 

Pro-life or pro-choice, Americans should realize that it all started with Roe v. Wade.  Unlike some other horrendous cases, it cannot be overturned; overturning Roe before righting the record on the Ninth Amendment would be devastating to women's health and women, generally, which is very bad for America.  Although the right to an abortion unequivocally existed at the time of this nation's founding, because women were not permitted to vote in order to protect that right, it went dormant.  In its place, a new but tenuous "right" emerged from the Court under the Fourteenth Amendment.  While it is hard to ratchet back rights once they are declared, what the Court giveth it is now intent upon taking away.  Once the Ninth Amendment right is secure, we can overturn Roe; we will have reached the Promised Land.

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.