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Part 1: Why Conservatives Should Support Fed Legalization Of Pot In Washington State

Why Conservatives Should Support Federal Legalization of Pot in Washington State - Seattle Criminal Lawyer Blog

Conservatives champion small federal government limited to the express functions set forth in the constitution (i.e. enumerated powers), state sovereignty, federalism, separation of powers, laissez faire economics, and limited regulation.

Yet some conservative pundits (including Sean Hannity of Fox News) appear disgusted with the recent moves of Colorado and Washington state to legalize marijuana. Why? This may be consistent with social conservative values.

But it is inconsistent with conservative principles with respect to limited federal government and state sovereignty.


Conservative lawyers, judges, and politicians have criticized the expansion of the federal government. The most noteworthy gross expansion of the Federal Government’s power occurred during the twentieth century–the commerce power was stretched so far as to virtually eradicate federalism.

The Federal Government got its power from the people and the states. It was designed to be a government with limited, enumerated powers, expressly set forth in the constitution.

Power not expressly granted to the Federal Government remained as the vested authority of the state governments. This broad power of state governments is referred to as the “police powers.”

The state governments pursuant to their police powers had authority to legislate for the health, safety, morals, and general welfare of their peoples.

On the other hand, the limited Federal Government was limited only to exercising its specifically enumerated powers and not general police powers.

Such enumerated powers of the Federal government include, but are not limited to:

  • Providing for the common defense of the United States
  • Declaring war
  • Raising and supporting armies
  • Providing and maintaining a Navy
  • Coining money and regulating its value
  • Providing punishment for counterfeiting the securities and current coin of the United States
  • Establishing post offices and post roads
  • Promoting progress of science and useful arts
  • To make laws that are necessary and proper for executing the foregoing and other enumerated powers.

The “Commerce Power” is another enumerated power of the Federal Government. The commerce clause provides that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This power has been stretched in such a way to make the Federal Government the leviathan it is at present.

The original purpose or “object” of the commerce power was to permit the Federal Government to terminate trade barriers or other dangers to interstate commerce to ensure an open and free common market within the United States.

Staying true to the plain language and meaning of the commerce clause, the “subjects” of the commerce power concerned (1) “commerce” (2) “among the states.” So it was originally understood that Congress could exercise the commerce power by regulating trade, buying, selling, traffic, and other instrumentalities of commerce between states in order to achieve the objective of protecting a free and common market (e.g. avoiding trade wars and protectionism between states).

Activities that were purely intrastate were beyond the scope of the commerce power if such activity did not concern either the “object” or “subjects” of the commerce clause. States could even validly exercise their police powers despite incidental impacts on interstate commerce.

For example, in the 1892 case Willson v. Black Bird Creek Marsh, the Supreme Court held that a state’s authorization of a dam that blocked a navigable waterway was a valid exercise of the state’s police power regardless of whether it had an incidental impact on interstate commerce.

Later the object-subject paradigm or understanding of the commerce power began to erode. Eventually the Supreme Court determined that both states and the Federal Government had concurrent power to regulate interstate commerce. In the 1851 case Cooley v. Board of Wardens, a Pennsylvania law required all ships entering Philadelphia Harbor to have a local pilot familiar with local waters.

Cooley brought an action contending this burdened interstate commerce and was an invalid exercise of the commerce power by a state. But the Supreme Court concluded both the states and Federal Government had the concurrent power to regulate commerce.

The court reasoned some subjects require uniformity while others vary depending on the locality’s needs.

The Cooley opinion eroded the “object/subject” understanding of the commerce power. Cooley caused the “object” aspect of the commerce power to erode because the opinion tended to ignore the dichotomy between state police powers (health, safety, morals, and general welfare) and the Federal commerce power (protecting a common market).

In the wake of Cooley, the Supreme Court began looking only at the “subjects” of the commerce power (i.e. “commerce” “among the states”) when reviewing the legality of the Federal Government’s purported exercise of the commerce power. The removal of the “object” analysis caused the Federal Government’s power to expand.

Eventually the Supreme Court determined that Congress could regulate and protect the instrumentalities of interstate commerce, persons, or things regardless of whether it may concern purely intrastate activities.

For example, in the 1911 case Southern Railway Co. v. United States, the Supreme Court upheld, as a valid exercise of the commerce power, a Federal statute which required all railroad cars engaging in commerce to equip certain safety features.

Then in the 1914 “Shreveport Rate Case,” the United States Supreme Court upheld, as a valid exercise of the commerce power, a Federal law that required railroads to charge the same rates for all shipments of good even if the rate concerned purely intrastate shipping.

These cases and their analyses further expanded the Federal government’s power to regulate intrastate activities.

Later, the Supreme Court determined that Congress had authority to regulate any activity although it was not part of interstate commerce so long as the activity directly affected interstate commerce.

For example, in the 1935 case Schechter Poultry v. United States, the Supreme Court struck down regulations concerning hours and wages of employees as an invalid exercise of the commerce power because it did not directly affect interstate commerce. A similar result was reached in 1936 in Carter v. Carter Coal.

While these cases recognized a limitation on the Federal Government’s commerce power, the opinions tended to expand Federal power by recognizing that even purely intrastate activities could be regulated if they “directly affected” interstate commerce.

But Federal power under the commerce clause expanded even more only a few years later.

To learn more about why conservatives should support federal legalization of of intrastate marijuana possession in Washington State, read part 2.