What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana

  • by Allen St. Pierre, NORML Executive Director July 13, 2012

    “What the End of Prohibition May Look Like”
    Authored By Justin Butler
    NORML Legal Intern
    J.D. Candidate, George Washington Law School, Spring 2013

    This upcoming November, voters in Washington and Colorado will go to the polls to decide whether marijuana should be totally legal in their respective States.  But will it matter?  After all, cannabis consumers and retailers in the 17 states that have legalized medical marijuana are still subject to harassment and arrest from the federal government.  The threat of federal action has halted the implementation of recently passed medical marijuana programs in Delaware and Rhode Island, and has slowed the progress of other States’ efforts to ensure that sick patients have access to the medicine they need.  In the first three years of the Obama administration, the federal government has participated in over 100 raids on medical marijuana dispensaries within states where medical marijuana is legal, even after promising shortly after assuming office that he would end federal raids on medical marijuana dispensaries that complied with state laws.   If voters in Washington and Colorado decide to take the leap and legalize marijuana, we have no reason to expect, based on prior actions, that the federal government will let these voters express and enforce their popular will unimpeded.

    To fix the system, we must first understand the system.  This paper seeks to explain why the federal government has the power to ignore the democratic will of its citizens and to continue to enforce unjust laws on voters who have decided that the imprisonment of cannabis consumers is a waste of government resources and a threat to civil society.  While to government’s power to regulate the economy isn’t new, this power was only “recently” (by legal standards) expanded to give the government the power to ban non-lethal drugs.  After all, banning alcohol required an Amendment to the Constitution.  Yet, less than 50 years later, the Supreme Court changed its mind and allowed the federal government to ban marijuana without state approval, much less a Constitutional Amendment.

    This apparently tyrannical power-grab stems, not solely from overzealous law makers, but from the inherent structure of our constitutional government.  There are certain explicit provisions in our Constitution, such as the Supremacy Clause, Commerce Clause, and Necessary and Proper Clause, that the Supreme Court has seized upon to allow the federal government to override the legislative wishes of individual states in the course of setting federal policy.  The first half of this paper provides a detailed overview of the powers provided to the federal government by the Constitution, and how these powers have been construed in recent times to allow the government to completely ban the possession, use, production, and sale of marijuana.

    The federal government’s power in this arena is not unlimited, however, and there are certain actions marijuana reformers can take to help prevent this crackdown as they pen future marijuana legalization ballot initiatives.  The second half of this paper explains how, through proper legal drafting, reform activists can limit the ability of the federal government to strike down or limit the effectiveness of state marijuana initiatives.

    If you would like to learn more on the subject of how the powers of the federal government operate to curtail your ability to consume cannabis, and how we can correct this injustice through the power of democracy, then this paper is for you.

    49 Responses to “What the End of Prohibition May Look Like: Preemption and the Legalization of Marijuana”

    1. Lunarpup says:

      Hello n Merry Meet All,
      A very interesting article, and I must say, some very interesting comments.
      Any time the topic of Pot comes up, it will bring out emotions on every side. It get’s frustrating and sometimes seems very pointless to keep trying. BUT, Don’t STOP TRYING!!!! We ARE winning….Really
      I’ve been a toker for 48yrs (as of this month…happy anniversary to me hehe) Teasing aside, You may ask how we are winning. Fair enough. I’ll use time frames within my own life to show examples. In July of 1965, every state had very harsh laws for pot, and fed law was harsh as well. You could easily get a year in prison for a seed. As the “Hippie” culture evolved, so did the general public’s view toward pot. ( Yes, I do understand the divide and such, that was driven mostly by politicians) I believe it was in 1970??, Timothy Leary challenged the marijuana tax stamp act, citing it forced self incrimination. He WON, the act was thrown out. Immediately Nixon declared his war on drugs and had pot placed as a schedule 1 drug. Opening the door for the laws we have now. BUT, on a brighter note, cities, then states started decriminalizing pot. Many states followed.(At each step feds did their best to muck things up) Every time the feds paid to find the evils of weed, they found the opposite. There was a federal med pot program for awhile. The results were very positive, but was shut down. But that opened the door for Calif. to place med pot on a ballot, along with Az. Both passed, but Az’s Gov. vetoed the vote.(We just over rode the veto in 2010) Since then, there are 14 other states and DC that approve Med Pot, with 10 states up for vote in nov. with a couple states going for full legal. IF, even a part of thoughs states pass their bills, the Feds will HAVE TO do something other than bust everyone. The simplest way would to have the feds decrim and let the people of the states vote. Another way would be to have the USA break the international ban on marijuana. Since the USA implemented it, we can abolish it. That would set the world free to do as they please as well.
      I do know there are still places where a pot bust will still f**k your life up bad. Most places really. Which gives truth to the saying: “Marijuana doesn’t destroy lives, The laws against marijuana destroys lives.”
      Don’t give up. I’ve been fighting all my life for this cause and will fight to my last breath if need be.
      Get out and VOTE!!!! Get out and be heard…
      We are WINNING… Honest. >:o):

      “When seeking the inner divine…She can open the eyes of the blind to the light of life… Open your ears to the words of truth… She will caress your soul with kindness and fill your heart with love.” (LP)

      Much Love n Blessings,
      Da Pup

    2. St. Nick says:

      We could win if a lot of people started speaking up about it-but who wants to? Talking positively about cannabis on TV might trigger a search warrant raid at your house where the pot is. It’s kind of like we have freedom of speech but we don’t on matters such as this. They’re not invincible, they will die, and DAMMIT they will NOT beat us. We’re making the decision to not lose. We need people with nuts to trip this into a full-scale country debate. The US government isn’t invincible. Maybe to other countrys but not to itself. I’m going to post this on several other forums.

    3. St. Nick says:

      Oh no. If I talk about God, they won’t answer or post. Boo-hoo. I’m shakin’ in my boots.

    4. St. Nick says:

      I don’t know why greed has’nt been brought into legalization? It’s as valuable as gold and you can grow it. 1 lb. nugz pot goes for up to $10,000. Plus the gov. could tax it like 150%. $20 base for a pack of 20 sativa or indica strain joints costing a total with tax of $50. We could pay off the national debt. It would create MILLIONS of jobs: Weed need millions to grow, transport, and sell. More to make the glass bowls and bongs. Plus we’d need more to cook the brownies and lollipops. There would also need to be scientists to inspect it and security for the retail shops. I guess politicians are accepting cartel drug money to try and keep marijuana illegal and that’s where the greed is. Well, greed is the root of something. Maybe I shouldn’t say. Might get weird if I do.

    5. St. Nick says:

      Some people think that legalizing marijuana would create a “social catastrophe.” I don’t think that cause marijuana’s already here. They must think if it was made legal everyone would go crazy and start murdering people. Hmmm… Even if that was true all people would need is more God, both Gods-Mother God and Father God. That could be easily taken care of even if it were true. Look, marijuana is already here right now. Let’s turn it into a good thing again like it’s been for thousands of years. Pot has SO many good uses and currently the worst thing about pot is the fact that it’s against the law. We have to be strong and take over. Peace out.

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    7. Conservative says:

      First , i wont spout a lot of laws and regulations that should prohibit
      government from doing what they are doing. We all are familiar
      with those. Second, its not a liberal or conservative issue. Its a freedom
      Issue. Im conservative and love my country and my freedom, however
      too many politicians vote to keep our freedoms from us. There is no
      more liberal person than the president we now have . We have to keep
      making small strides and keep it in the discussions and keep it positive
      The tide is slowly turning. When i started smoking 30 years ago i would
      never have imagined legalized medicinal pot . Be optimistic. We are gonna get this.

    8. M:-X says:

      Everything Allan has written here is how the majority see the legal view. HOWEVER– there are exemptions to the scheduling of drugs. One is the supreme court findings on Ayahuasca:


      Another variation can be found in the nation’s peyote laws. Did you know there’s an exemption for peyote for religious use?

      Many people BELIEVE this is only a matter of compassion for Native Americans, and that only they are exempt. THIS IS NOT TRUE. And here’s the real reason I bring this up– in regards to Peyote SEVERAL states have their own laws (including Colorado where only “authentic religious intent” needs to be shown). Not all states require membership in the Native American Church.

      If the federal government can take such a hands off approach with peyote, a much more powerful plant, why can’t they take a similar approach with marijuana?

      We all know the answer:

      Money & Corruption.

    9. CNB says:

      Im pretty sure whoever v is, is a genius. If anyone was too grite a revolution speech lol. You should be on the list.

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