In part 1, we discussed the original understanding of the Federal commerce power and its erosion.
In part 2, the gross, substantial expansion of the Federal Government’s power that occurred in the twentieth century was discussed.
Now, we’ll cover the relationship of intrastate marijuana possession and use to the expansion of the Federal Government’s power.
The expansion of the commerce power finally reached marijuana in the 2005 case Gonzales v. Raich. In 1996 California passed proposition 215 making medical marijuana legal. Angel Raich then began growing marijuana at her home legally under state law. Marijuana remained illegal under the Federal Controlled Substances Act.
Eventually, federal agents began destroying marijuana plants. Raich and others sued the Federal Government contending that it had no power to enforce the Controlled Substances Act pursuant to the commerce clause and in light of the Tenth Amendment (among other legal theories).
The Federal Government contended that Wickard v. Filburn applied to the case, and that if the activity of home growing marijuana was repeated by many individuals, overall it would have a substantial effect on the interstate marijuana market; and therefore the Federal Government, pursuant to the commerce power, had authority to regulate even purely intrastate and private consumption of marijuana under the Controlled Substances Act – and that this Federal law preempted California legalization.
Today, this huge Federal power grab is a problem. It is inconsistent with our constitutional framework.
The Federal Government basically has no limits. The commerce clause jurisprudence discussed in parts 1 and 2 have centralized power in the federal government. The Federal Government can basically exercise “police powers” that were reserved for the states.
The Federal Government’s regulation of marijuana is one serious example of where the Federal Government is actually overstepping its bounds. It has power under the commerce clause to limit purely private intrastate activities including marijuana possession due to the NLRB v. Jones & Laughlin, Wickard v. Filburn, Gonzalez v. Raich line of jurisprudence.
But for this huge power grab, it is possible the new laws of Washington and Colorado would not be in jeopardy of preemption.
Conservatives should support federal legalization of intrastate marijuana possession in Washington state and Colorado. It is not necessarily a “marijuana is bad” issue. It is an important issue in terms of the limitations on the federal government’s power and state sovereignty.
I-502 and marijuana legalization may create the potential to revisit the gross and substantial expansion of the Federal commerce power in the wake of Justice John Roberts’ claims in National Federation of Independent Business, et al v. Sebeluis.
Supporting federal legalization of intrastate marijuana possession or consumption does not necessarily mean supporting marijuana use per se or marijuana legalization in each state in the entire country.
The issue concerns:
- State sovereignty
- Limited Federal Government
- Returning our nation to original framework the founders intended.
Individual states should remain free to criminalize marijuana if their people or legislatures choose to do so. Conservatives should support the position that purely intrastate possession or consumption of marijuana is an issue that should remain exclusively within the state’s police powers.
If a person wants to have a certain potted plant in their own backyard or inside their curtilage or home (like the wheat growing in Wickard v. Filburn), that should not be something that is the Federal Government’s business. Centralization of power in the Federal Government has become a problem.
If you are conservative and disagree with marijuana use, then support laws that make marijuana illegal on the state level. However, conservatives that truly believe in state sovereignty, limited federal government, and our constitutional framework should consider supporting federal legalization of intrastate marijuana possession in those states that have chosen to legalize it.
Such positions are not hypocritical. Rather, these positions reflect conservative values in a truer and more reasoned sense.
Fiscal conservatives may also find reasons to support marijuana legalization. There is a potential for tax revenue. Certain costs may also decrease as a result of legalization (e.g. the cost of law enforcement, prosecution, enforcement, and burdening courts).
Beyond the above, what about individual responsibility?
What about parents teaching their kids about marijuana? What about young adults making their own decisions? Don’t we have to do the same with alcohol? Individual freedom and responsibility is also something conservatives value.
Conservatives should consider supporting legalization of intrastate marijuana possession for reasons other than lending support marijuana use per se.