Skip to comments.The Limits of Frederalism - Why you can't be a federalist and ignore medical marijuana.
Posted on 09/17/2007 7:17:18 PM PDT by neverdem
Sen. Barack Obama (D-Ill.) recently said that, if elected president, he would end the federal raids on medical marijuana patients and their health care providers.
That makes the Democratic field unanimous now — all would end the raids and allow the states to craft their own medical marijuana policy, free from federal interference. By contrast, just two of the remaining GOP candidates — Rep. Ron Paul (Texas) and Rep. Tom Tancredo (Colo.) — and none of the front-runners have promised to call off the raids.
This is unfortunate for a party that once fancied itself the torch-bearer for federalism — the idea that most laws should be made on as local a level as possible, both to encourage state “laboratories of democracy” to experiment with different policies and to allow people to utilize the freedom of movement to choose to live in those jurisdictions with laws that best reflect their own values.
If ever there were an issue for which federalism would seem to be an ideal solution, it’s the medical marijuana issue, which touches on crime, medical policy, privacy and individual freedom — all the sorts of values-laden areas of public policy that states are best equipped to deal with on a case-by-case basis, and for which a one-size-fits-all federal policy seems particularly clunky and ill-suited.
Yet the GOP won’t let go. The White House continues to send federal SWAT teams into convalescent centers, dispensaries and treatment centers, often putting sick people on the receiving end of paramilitary tactics, gun barrels and terrifying raids.
It’s difficult to understand how the same party that (correctly, in my view) argues that the federal government has no business telling the states how they should regulate their businesses, set their speed limits, keep their air and water free of pollution or regulate the sale of firearms within their borders can at the same time feel that the federal government can and should tell states that they aren’t allowed to let sick people obtain relief wherever they might find it.
Medical marijuana is probably a nonstarter politically.
Though polls show most Americans support medical marijuana, few decide their votes on the issue, save for a cadre of drug reform activists and the people who actually need the stuff to treat their symptoms.
But the issue ought to be of wider concern to principled federalists, because it was the GOP’s stubborn support for near-limitless federal power to fight the drug war that killed the nascent federalism revolution before it ever grew wings.
That short-lived revolution began in 1995, when the William Rehnquist-led Supreme Court ruled in U.S. v. Lopez that Congress had no constitutional authority to regulate the sale of guns near schools, then again in 2000 with U.S. v. Morrison, which struck down the 1994 federal Violence Against Women Act.
Those two cases ended 60 years of Supreme Court deference to Capitol Hill on the issue of whether the Constitution actually permitted the Congress to enact the laws it was passing. Some legal scholars thought it possible that the court might look for an opportunity to overturn Wickard v. Filburn, the notorious 1942 ruling which said that under the Interstate Commerce Clause, Congress can regulate the wheat a man grows on his own land for his own use.
That opportunity came in Gonzales v. Raich, in which the Bush administration argued that the commerce clause allows the federal government to prohibit marijuana grown in one’s own home for one’s own use, even for medical treatment, even in states that had legalized the drug for that purpose. The Supreme Court upheld the government’s right to prohibit marijuana, even under these limited circumstances.
The court’s left wing was joined by Justices Anthony M. Kennedy and Antonin Scalia — who had formed the federalist majority in Lopez and Morrison — to uphold the federal supremacy of the Controlled Substances Act when it conflicts with state law. Justice John Paul Stevens’ majority opinion cited Filburn as the controlling case law. The court’s principled federalists — Clarence Thomas, Sandra Day O’Connor and Rehnquist — wrote in dissent.
The Washington Post explained in an editorial a few weeks later how Raich was about much more than medical marijuana. It was about the proper scope and the defining limits of the federal government. The editorial was one of support for a recent federal ruling upholding the Environmental Protection Agency’s decision to halt a construction project due to an endangered cave-dwelling bug native only to Texas that was found on the planned construction site.
Had Raich gone the other way, the Post noted, the EPA likely wouldn’t have been able to prevent a hospital from being built in order to save the insect. The Post thought this was a glorious benefit from the Raich decision.
I suspect most Republicans feel otherwise.
Raich represented the last chance to rein in a Congress that sees no constitutional limits whatsoever on the reach and breadth of its power. It was GOP devotion to the drug war that subverted it, killing the Rehnquist federalism revolution in its infancy, narrowly limiting Lopez and Morrison and freeing the Congress to legislate wherever it pleases, with little or no constitutional constraints.
Over the past few months, former New York City Mayor Rudy Giuliani and former Tennessee Sen. Fred Thompson have tried to position themselves as the standard-bearers for federalism. The Los Angeles Times’ Ron Brownstein recently praised Giuliani’s federalist approach to contentious social issues like gun control, gay rights, health care and abortion. Thompson has written several columns touting local control over the past few months.
But Giuliani has spent most of his career advocating for more federal power to fight the federal war on drugs. He has declared that he would continue the Drug Enforcement Administration raids on medical marijuana facilities, overruling state law.
Thompson is the only candidate yet to take a public position on the raids. While he’s right to note his impressive pro-federalist voting record in the Senate, he also voted for a number of bills strengthening the federal war on drugs.
And while Thompson’s campaign essays rightly decry the federalization of crime and the soaring U.S. prison population, they’re curiously silent on the war on drugs — a leading cause of both of these troubling trends. Thompson’s campaign did not respond to inquiries about his position on the DEA raids for this article.
Giuliani and Thompson claim they want to reinvigorate discussion of the virtues of federalism. Terrific. But you can’t argue that states should be free to make their own policies without federal interference — except when you happen to disagree with them. You can be a federalist, or you can be an ardent drug warrior. But you can’t be both.
Radley Balko is a senior editor for reason. This article originally appeared in The Politico.
Yo! Any of you Federalists
got any papers man?
The author sounds right to me. Butt out Fed.
Hmmmm.... maybe why the fence isn’t built yet...... If it was legal to grow yer own, who would ever pay for it?
I’d like to see a reasoned argument rebutting the points made in this article.
I have often argued the same point of the author, its this issue that decides whether you merely talk the talk in terms of federalism or if you walk the walk.
"Like, Ron Paul for President, man!" - Tommy Chong
So let me get this straight...did this guy just say that arresting criminals causes prison populations to rise? I’m not for greater federalizing of crime but Marijuana is not a harmless drug that we want mainstreamed. The Netherlands have seen crime rates and drug use particular among the youngest instead of plummet, as is often claimed will happen with legalization, skyrocket. The cost to society in terms of imprisonment and the war on drugs is small compared to the cost of decriminalization which would be a disaster as it has been everywhere it has been tried. They only ones who don’t seem to understand this are the users. Let the high lead the high and they fall into the ditch or else they end up married to Hillary Clinton. I think I’d take the ditch. lol
I agree completely with the points of this article.
I personally hate marijuana-and smoking in particular-but the Feds have no business getting involved with it. If a state wants to make it illegal, so be it, but I do not want the federal government involved nor our federal tax dollars spent on 'fighting' it.
Is that supposed to be funny? And why would you deny the sick the ability to pharmacologically use their endocannabinoid receptors?
Maybe you should rethink your name. The Bill of Right was created because the states feared an all powerful central gubmint. They wanted a limited federal gubmint so they included the Ninth and Tenth Amendments for rights retained by the states and the people.
The Bill of Rights, pardon me.
Whether Medical Marijuana, Abortion, Speed Limits, Education, Welfare or Gambling...you're either a Federalist or you're not.
I’d much rather walk thru the worst parts of Amsterdam than the worst parts of any US city.
I’ve heard that ‘skyrocket’ claim many times before, but seeing the current stats of crime in the Netherlands, I find it hard to believe crime could have ‘skyrocketed’ very much. I’d love to see the US have just double their crime.
It seems to me the question is not whether you or I should care about what a third party puts into his body, that is afterall a moral judgment, rather, the question is whether the government should care about what someone puts into his body?
Clearly the government has a constitutional right to regulate and criminalize drugs just as it has the right to regulate food and ethical drugs. The question is not whether it's constitutional but whether it is good public policy.
Seems to me that if a government prohibition on the use of drugs actually eliminated drug use, few except perhaps some aging hippies and top models would argue vehemently against such laws which would redeem so many wretched lives. But experience has shown that government fiat does not eliminate drug use. So the real question is, does government prohibition reduce drug use? And if it does, is the price worth paying? It is not entirely clear that the laws against drug use actually reduce their use because the prohibition itself creates a financial incentive which works to subsidize its use. The government has never found a way to eliminate or reduce drug usage without inserting a profit factor. Worse, the more the government is effective in reducing the inflow of illegal drugs, the more it creates a counter incentive of increased profitability by the law of supply and demand. Perversely, since the drugs tend to be addictive there is a physical compulsion to seek more of the drug and, since government efforts to eliminate it inevitably raise its price, users in withdrawal are tempted to finance their habits by becoming dealers. So it is not clear whether the government's efforts to reduce drugs by prohibiting their use actually does more harm than good.
One of the prices we pay for our government's campaign against drugs is certainly a loss of liberty. I tend towards the Libertarian's view that it is none of the government's damn business what I put in my body. However, I recognize that such usage inevitably presents a risk to society. I do not want inebriated drivers plowing into my automobile whether they are drunk on alcohol or drugs. But society has learned a hard lesson, that is better to make the drunk driving the crime but not the consumption of alcohol itself.
Another price we pay is a loss of privacy. Mandatory testing of both government and private employees is to some degree intrusive. Queries about drug use and application forms are equally intrusive. Undercover agents operating in public bathrooms is an affront to our dignity. Eavesdropping of telephone conversations is unquestionably an invasion of privacy. It is the reduction, or rather the presumed reduction, if any, in the amount of drug usage obtained by these intrusions worth the price?
We pay a great financial price as well. The war on drugs costs us billions of dollars annually in enforcement and incarceration costs. Is this money well spent?
There is an insidious price as well: corruption and its handmaiden, cynicism. Our police, our border agents, our judges, one might say the entire criminal justice apparatus has been infected with a corruption generated by the huge profits to be made-profits which are there only because the government by its policies has created them. Inevitably cynicism results in the whole of the people beginning to despise rather than revere the rule of law.
Because drugs are illegal, the price is high and profits are enormous. Yet we send our boys to fight in Afghanistan to deprive Taliban chieftains of their poppy fields which finance at least indirectly the very terrorism we fight against. Would it not be better simply to eliminate the profits in poppies by legalizing the drug? Can we ever hope to bring sanity to Columbia while we in effect subsidize narcos by billions of dollars a year? Is the damage to our foreign policy, like the damage to our precious rule of law, worth what benefit we get from criminalizing drugs use?
On balance, I have to throw my lot in with William F. Buckley and say that the war against drugs is lost and we ought to try a new tact.
*sigh* Again we get back to the idea that the federal government’s limits are enumerated in article 1, section 8 of the Constitution. If a state or a community wants to ban marijuana, or, for that matter, grow vast fields of bud, that is their business. Commerce between the states is a federal affair, true, but I’d be hard pressed to argue that a state making a drug illegal to possess is interstate commerce. This isn’t an argument for or against dope. This is an argument about who gets to implement and enforce drug laws. (Given a choice, I’d say ban marijuana - it’s awful stuff. Lots of things are awful. Many of those awful things shouldn’t be regulated by the federal government.)
Sadly, I’m about 100 years behind the times here. We continue to slouch towards socialism.
Excellent essay! I believe the war on drugs is a fools errand. Corruption overseas and how it screws up foreign relations with other countries, besides the two you mentioned, seem to me the the only missing parts, IMHO.
Jefferson was a lefty in his time. People who misconstrue “federalism” are much farther to the social left.
The author is right on substance--the constitution gives no power to congress to regulate entirely in-state commerce. But the single best issue? Seems to me the federal takeover of all aspects of commerce in the 30' and 40's is a more profound and and more serious incursion into the constitutional scheme.