Recently, new federal government healthcare regulations as well as its continued attacks on medical marijuana have prompted a great deal of talk about the ways in which states can resist federal power. Much of this talk has dealt with the constitutionality of Nullification and the true purpose and authority of the Tenth Amendment. This week we will take an in-depth look at the debate, the history behind it and the possibilities of the future.
The Great Debate and the Marijuana Question
This past week, a couple of news stories emerged that contrast the different attitudes surrounding the issue of who holds the power in our political system. In Montana, Governor Brian Schweitzer vetoed a bill by the legislature that would have completely repealed the medical marijuana law approved by voters in 2004. The governor rightfully called the move “frivolous, unconstitutional or in direct contradiction to the expressed will of the people of Montana.” While the legislature tried to back up the federal prohibition, the governor let it be known that the choice rested with the people.
On the other side of the spectrum, Washington Governor Chris Gregoire indicated that she would not sign a new law developed to enable a dispensary system (medical marijuana is legal in Washington, but dispensaries are not) in the state after federal attorneys threatened a crackdown. The letter states that the federal government will seek to prosecute growers, dispensaries and even state employees involved in the licensing procedure. According to Gregoire, “In light of the Department of Justice’s guidance, it is clear that I cannot sign a bill that authorizes our state employees to license marijuana dispensaries when the department would prosecute those involved.“ Furthermore, the letter was a response to the governor’s own inquiry directed at the Justice Department. Her actions leave little doubt that Governor Gregoire believes the power here is with the federal government.
The truth is that there is no easy answer; this is an issue that has a history as deep and complex as the nation’s own. Federalism and States Rights have been raised to back up both noble causes, like the right to use marijuana; and unquestionably evil ones like the right to own slaves. Today there is a growing civil liberties movement drawing attention to the one short sentence in the Constitution that deals with this directly, the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Seems pretty clear doesn’t it? States retain all powers not prohibited or delegated to the federal government by the Constitution. The Supreme Court, however, has often chosen to back up the central government through almost obscenely broad interpretations of the text. The biggest offender here by far is the so-called Commerce Clause of the Constitution. It reads:
“Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
While this clause has been used to essentially define the reaches of federal power over the states, it does not change the fact that the wording clearly deals with commerce alone and does nothing to incorporate the civil rights side of things into the equation. What powers, but those retained through the 10th Amendment, do states and their citizens have to choose how to conduct their own affairs? What is the point at which federal commerce power clashes with the constitutional guarantees of a right to life, liberty and pursuit of happiness? Before we can begin trying to define the battle lines, we need take a look at the history of the 10th Amendment and its relationship with the Commerce Power and the constitutional rights of citizens.
PART II will go over the words of the Founding Fathers.
Disclaimer: These opinions and statements made in these posts are solely the authors and do not necessarily represent the opinion of 420 Petition and its parent company.