Homegrown marijuana would be an interesting high court case

National Constitution Center

The decisions of two states to legalize marijuana have sparked a big debate over the rights of states versus the federal government. But could homegrown pot face an easier legal battle?

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For now, federal officials aren’t talking about the referendums in Washington and Colorado to allow state governments to control recreation marijuana consumption.

The two state laws directly conflict with the federal Controlled Substances Act that bars marijuana consumption in any form.

On Sunday, California Governor Jerry Brown weighed in on the issue, which is being framed as a states’ rights problem, in addition to a social rights issue.

“It’s time for the Justice Department to recognize the sovereignty of the states,” Brown told CNN. “I believe the president and the Department of Justice ought to respect the will of these states.”

President Barack Obama’s administration doesn’t favor the legalization of marijuana, and it could file a federal lawsuit at any time to block the Washington and Colorado laws from going into effect.

The fight over “marijuana prohibition” is reminiscent of some of the battles over alcohol prohibition in the 1920s.

The 18th Amendment outlawed “the manufacture, sale, or transportation of intoxicating liquors” in the United States, and it was enacted by the Volstead Act on October 28, 1919.

The act didn’t bar the consumption of alcohol by citizens, especially at home. There were loopholes for home consumption, medical use, and religious use.

Those exceptions remained in place through the entire Prohibition Era until the 21st Amendment repealed the Volstead Act in 1933. That amendment returned the regulation of alcohol back to the states.

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Today, there’s no amendment barring marijuana consumption, but there is an act that is stricter than the Volstead Act. The federal Controlled Substances Act of 1970 puts marijuana in the category of Schedule I drugs, along with heroin and LSD. Its use is not permitted for medical or any reasons, at least not in the federal statute.

However, in 17 states and Washington, D.C., governments allow marijuana use by people with medical conditions.

The federal government raided more than 500 marijuana dispensaries in several states during the past two years, but no one has faced federal prosecution for personal use.

The new Colorado law allows adults to possess up to one ounce of marijuana and six marijuana plants, though public use of the drug and driving while intoxicated are prohibited.

Washington state’s liquor control board would administer sales of small amounts of marijuana. In both states, the products would be heavily taxed and controlled.

When federal and state laws conflict, they usually wind up in the lap of the Supreme Court. And it wouldn’t be the first time the justices have given a decision about marijuana use.

The case of Gonzales v. Raich in 2005 contains a few clues about how the court could rule if it makes a decision to hear a similar appeal.

The court ruled 6 to 3 in favor of the federal government’s power to regulate the growth and consumption of marijuana for medical use, through the power of the Commerce Clause.

Justice John Paul Stevens, writing for the court majority, said that Congress clearly had the power to regulate marijuana, even if is was grown for home consumption.

“The regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity,” he said.

The three dissenting justices had strong opinions, especially when it came to the use of homegrown marijuana and states’ rights.

“If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite,’” said Justice Clarence Thomas.

“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ‘appropria[te] state police powers under the guise of regulating commerce,’” he also said.

Justice Sandra Day O’Connor also pointed to Madison in her dissenting opinion.

“We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: ‘The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite… . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State,’” she said.

Since 2005, the federal government has sporadically enforced its laws about medical marijuana use, citing steep costs. The costs would only be steeper if it had to enforce laws about recreational use across several states.

If the marijuana issue makes it back to the Supreme Court, the justices would face new questions, such as the prospects for “marijuana tourism” in Colorado and Washington, complications to the Commerce Clause question, and the fact that federal government hasn’t really been enforcing medical marijuana laws.

Also, only five of the nine justices who heard the Gonzales v. Raich case in 2005 remain on the court.

And pointing back to the Volstead Act, which never outlawed the home crafting and consumption of alcohol, the case of homegrown marijuana could get another review, in light of the 2005 case–at least for medical use.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Program Note: Echoes of Prohibition: Today’s War on Drugs

Thursday, November 15, 2012, 6 p.m.

Daniel Okrent, bestselling author and curator of the Center’s world-premiere exhibition American Spirits: The Rise and Fall of Prohibition, joins Christopher Bracey, Senior Associate Dean for Academic Affairs at George Washington University Law School, to discuss the legacy of Prohibition in relation to the nation’s evolving drug policies.

More info: constitutioncenter.org/calendar/echoes-of-prohibition-todays-war-on-drugs

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