In voting to legalize marijuana, Colorado and Washington have set up a neat object lesson in federalism. After all, what does it matter if the voters of these two states have decided that people should be able to decide for themselves, without interference from the state, whether or not to use marijuana, if the federal government will continue to prosecute those who chose to do so?
The marijuana issue is interesting because it involves so much ideological inconsistency on both the left and right. Marijuana legalization seems to be more popular with the left (and the libertarian right) than with the traditional right. The voters in Colorado and Washington who approved legalization presumably would like to proceed without interference from the federal government. On the other hand, leftists consistently support federal involvement in most other areas of national life. They like federal initiatives in education, transportation, energy, industry, health care, etc.
By contrast the right tends to support a comparatively smaller role for the federal government in these areas but also favors federal drug prohibition. I once heard Rush Limbaugh in a conversation with a caller about the subject of states' rights, which Limbaugh generally supported. But when the subject turned to drug legalization Limbaugh stated that drugs are "inherently federal." I rarely yell at my radio but I nearly lost it when I heard that phrase. The whole point of the Constitution's creation of a government of limited and enumerated powers is that nothing is "inherently federal." Limbaugh's use of the phrase represented an ignorant and careless attitude about Constitutional government. The right should be better than that.
Barack Obama and Eric Holder have indicated their intention to enforce federal laws against marijuana possession even within the states of Colorado and Washington. One suspects that both men's ideological sympathies run towards legalization and they would be happy to see Congress follow those two states' lead. However, I think the supremacy of the central government is far more important to them than any given policy position.
This is one of those occasions when I'm reminded why I like the Eighteenth Amendment so much. The Eighteenth, which enacted Prohibition in 1919, represents one of the last times that Congress recognized that it's authority was subject to Constitutional limits. For if Congress already possessed the Constitutional authority to ban alcoholic beverages, it could have proceeded by a simple legislative act requiring only a simple majority of both houses. Instead Congress recognized that it had no power to implement this policy, no matter how popular it might be. The only legitimate course was to augment Congress' powers through the amendment process, requiring two-thirds of each house plus ratification by three-fourths of the states.
When Franklin Roosevelt took office the Congress began asserting the power to intervene in a number of areas previously understood to be beyond its authority. For several years the courts refused to allow Congress to act outside of the limited and enumerated powers contained in the Constitution. But the Supreme Court eventually knuckled under to political pressure and removed any practical limits on Congress' power. Can anyone doubt that if Congress decided to enact Prohibition in 1939 instead of 1919, it would simply have asserted the power to do so under the Commerce Clause?
The fact is that Congress has no authority to ban the cultivation or possession of marijuana. Presumably it could legitimately act to bar the interstate transportation or importation of marijuana into states where it is not permitted but that is the extent of its power in this area. Conservatives need to be true to their convictions and support the right of Colorado, Washington and any other state that so chooses to legalize marijuana.
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