Washington: Are They Drunk, or Just Stoned?

Could marijuana be the gateway drug to federalism?

This was the title of an article that ran in the Denver Post in January of 2018. In the wake of the last election, The Daily Caller carried a piece entitled “Marijuana Federalism Won The 2018 Midterms.”

Since the election of President Trump, scholars, pundits and policymakers on the left are dusting off the Federalist Papers and embracing the structural – not political – doctrine of federalism. They are reconnecting with the arguments of James Madison that “The powers delegated by the proposed Constitution to the federal government are few and defined. … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” They proffer this argument in support of their conclusion that “marijuana policy is one such object that should be determined by the states.”

Marijuana policy is “an area where many on the left and right disagree, but where the left has rediscovered that state boundary lines mean something,” writes former U.S. Congressman John Hostetler, Director of the States Trust project for the Texas Public Policy Foundation. “There’s plenty of common ground here between progressives and conservatives,” he continues, “at least as far as … agreeing that states should be free to seek their own solutions to the problems that plague us all.”

The federal Controlled Substances Act still designates marijuana as a Schedule I drug, making it completely illegal to possess and distribute. But, if marijuana policy is reserved to the states, as our friends on the left assert and defend, how did the federal Controlled Substances Act ever come into being in the first place?

The story behind this question could hold the answer for state leaders across the political spectrum in joining together and meaningfully restoring the governing balance between the national government and the states. The Framers designed this unique balance in order to secure the governing voice of the American people, as well as the efficiency, effectiveness and accountability of government that they demand.

In 1917, Congress sought to regulate alcohol. Congress knew that the regulation of “intoxicating liquors” was not a power delegated to the national government in the Constitution. So, under Article V, two-thirds of each house of Congress proposed an amendment to the Constitution prohibiting “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof.” Once ratified by three-fourths of the States, as required under Article V, this “prohibition” became the 18th Amendment to the U.S. Constitution.

Prohibition gave rise to a black market for alcohol, which proved to be a bonanza for organized crime. Crime syndicates funneled illicit money into corrupting police and undermining the Prohibition amendment, among a host of other laws. The public was outraged.

So, in 1933, again exercising its powers under Article V, Congress proposed another amendment, this time to rescind its prior Prohibition amendment. Beyond merely rescinding the 18th Amendment, the 21st Amendment also clarified that the regulation of alcohol was a matter reserved to the states and was prohibited only if “in violation of the laws thereof,” i.e., the laws of the states.

Fast forward just four short years. In 1937, Congress sought to regulate “the importation, manufacture, production, compounding, sale, dealing in, dispensing, prescribing, administering and giving away of marihuana” throughout the United States.

This time, Congress didn’t bother with proposing an amendment. Rather, Congress concocted an elaborate scheme to regulate and penalize marijuana by passing the Marihuana Tax Act. While not an absolute prohibition, the Marihuana Tax Act levied a tax “on all buyers, sellers, importers, growers, physicians, veterinarians, and any other persons who deal in marihuana commercially, prescribe it professionally, or possess it.” Along with the tax was a host of regulatory requirements that had to be followed with exactness. Under Section 12 of the Act, “Any person who is convicted of a violation of any provision of this Act shall be fined not more than $2,000 or imprisoned not more than five years, or both, in the discretion of the court.”

In 1937, $2,000 was the equivalent of more than $35,000 today!

By calling their regulation of marijuana a “tax,” and by fabricating an oppressive regulatory scheme subject to draconian penalties, Congress prohibited “the importation, manufacture, production, compounding, sale, dealing in, dispensing, prescribing, administering and giving away of marihuana” in complete circumvention of the constitutional method for altering the distribution of delegated powers through Article V of the Constitution.

Seeing that the states, suffering the devastating effects of the Great Depression, were asleep at the constitutional wheel, Congress applied the “shampoo formula” to its newly contrived method of amassing extra-constitutional “power” – lather, rinse, repeat.

After more than 40 years of getting away with constitutional “murder,” Congress expanded its “power” in this area yet again in 1970, superseding the Marihuana Tax Act with the Comprehensive Drug Abuse Prevention and Control Act, also known as the Controlled Substances Act. By this time, the shampoo formula had virtually superseded the entire Constitution. Meanwhile, state leaders developed a chronic case of constitutional amnesia with respect to their oath-bound duty to preserve the healthy tension and balance of power by pulling on the federalism tug-of-war rope.

Enlightened by his study of man’s relation to government throughout recorded history, Thomas Jefferson warned, “A departure from principle in one instance becomes a precedent for the second; that second for a third; and so on, till the bulk of the society is reduced to mere automatons of misery, to have no sensibilities left but for sinning and suffering.”

Fortunately, it’s not too late! Our friends on the left are shaking the cobwebs off of federalism, and taking real, bold action to restore state powers important to them. Perhaps it’s past time for us to awake and arise, join with our friends across the political spectrum, repudiate the shampoo formula of federal centralization, and restore the governing balance of powers which magnifies the voice of the American people and makes government actually work for them again.

If our friends on the left can restore state power over marijuana policy, what state powers will you seek to restore for your state?

At the annual ALEC meeting, August 14-16 in Austin, Texas, there will be a host of programs to learn more about our unique federalism system, our role as state legislators to restore and maintain this system, and the collective power we have as we work together to take real, bold action to preserve our jurisdictional authority for the well-being of our people.

It really doesn’t matter if Washington today is constitutionally drunk, or just stoned. As prominent Founder John Dickinson cautioned

“In short, the government of each state is, and is to be, sovereign and supreme in all matters that relate to each state only. It is to be subordinate barely in those matters that relate to the whole; and IT WILL BE THEIR OWN FAULTS, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.” (Emphasis in original).

In Depth: Federalism

Genuine accountability to hardworking taxpayers results when state and local legislators work with members of the community to determine a plan of action that is right for each individual state, city or town. Real solutions to America’s challenges can be found in the states – America’s fifty laboratories of democracy…

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