Constitution Daily

Smart conversation from the National Constitution Center

Marijuana, prohibition and state's rights.

November 22, 2010 by Lauren Cristella


The recent failure in California to legalize marijuana for recreational use (Proposition 19) got us talking at the National Constitution Center.  Just before voters headed to the polls, Attorney General Eric Holder made it clear that if the law passed, the national authorities would still enforce the federal laws.  Exactly how could a state consider enacting a law that would contradict the national law?

Prohibition and Marijuana

This question of where the line between state and federal authority is drawn is not a new one, just the most recent example in a long line of debates over federal power.  In 1819, then-Chief Justice John Marshall rightly predicted that the line between federal and state authority would be debated as long as we have the system set by our Constitution.

The system of shared power between the states and national government laid out in the Constitution is known as federalism, and it has never been easy.  The showdown between the federal government and state governments over marijuana has many similarities to the nation’s long history of alcohol regulation.

In the 1980s, the federal government issued the National Minimum Drinking Act requiring all states to have a minimum purchase and public possession age to 21 or risk losing a chunk of their federal highway funding.

Supreme Court rules in favor of nationalism

South Dakota questioned the federal government’s authority to enact this law, and sued then-Secretary of Transportation, Elizabeth Dole to receive their federal highway funds.  In a 7 to 2 decision, the Supreme Court found that the law related to “general welfare” and that Congress’ actions to preserve welfare were reasonable.  That was a big win for nationalism.

Yet, the end of Prohibition was due—in part—to increased decriminalization by the states leading the federal government to eventually support the 21st Amendment which repealed the ban on alcohol. Score for state’s rights.

The Supreme Court has broadly interpreted the federal government’s powers in the past, but that will not keep proponents of recreational marijuana use from trying to legalize it in 2012.  We’ll have to stay tuned to uncover the next chapter in this story, but until then, what do you think about the federal government’s authority to override state laws?

Photo credit: Flickr user

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