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Why Isn’t Marijuana Considered a States’ Rights Issue?

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Marijuana isn’t something you naturally associate with constitutional law, but at The Nectar we delight in being nerds, and we see marijuana as a window into many fascinating topics.  

Among these topics are states’ rights. They are codified in the 10th Amendment, invoked on a regular basis, and yet are frequently misunderstood. “The doctrine of states’ rights provokes fierce negative responses and much knee-jerk denunciation,” wrote historian Eugene Genovese, “especially among those who do not have a clue to its meaning.” Genovese was a contentious figure, but on this point his critics might all agree.

We often overlook the scale on which America’s founders launched their project. In the eighteenth century, a democracy of any size would have been ambitious. Important news travelled at the speed of riders on horseback, and North America was massive. The balance of power between federal and state governments, known as federalism, has remained a challenge to this day. The history of federalism is so complex that reducing it to a summary would be an injustice, but we’ll try.

Alexander Hamilton and Thomas Jefferson did not agree on things. Following the Revolutionary War, America was in debt, and Hamilton advocated for federal authority. Among his priorities were industrial development, commercial efficiency, and full payment of the national debt – to include collective assistance to those states facing insurmountable bills. Jefferson was skeptical of a strong central government. He envisioned a future based on agriculture, self-reliance, and rural values. America was large, and growing. Conditions were ripe for combat.

Eventually, the stage would be set for the Civil War. Today, Americans are divided over the root of this conflict. By a 48%-to-38% margin, more Americans say states’ rights rather than slavery was the main cause, according to a 2011 poll by Pew Research. Many experts disagree. “Historians are pretty united on the cause of the Civil War being slavery,” according to Drew Gilpin Faust, president of Harvard University. The kind of percentages reported by Pew, she says, “must necessarily be disturbing to historians, who believe quite differently from the general public.”

Some disagreement is semantic. Slavery was technically among the rights over which southern states chose to fight. Depending on where and when they were educated, Americans have been exposed to different interpretations. As it involves race, heritage, and obvious crimes against humanity, the debate has remained a subject of controversy.

For our purposes, it makes more sense to see states’ rights as a rhetorical tool. Modern politicians rarely miss a chance to protect or advance their agendas, and they’ve generally been much less faithful to political philosophy than were the likes of Hamilton, Jefferson, or Madison. The concept of federalism is abstract, which allows politicians to use states’ rights on an inconsistent basis. They’ve done a lousy job of hiding it, too.

As the Attorney General in Oklahoma, Scott Pruitt, now the head of the Environmental Protection Agency, was strongly opposed to Obamacare and argued in favor of his state’s refusal to participate. But as a member of President Trump’s administration, he is now supporting a range environmental, healthcare and immigration initiatives that would require compliance by all states. Democrats, on the hand, have eagerly supported a variety of sweeping federal legislation, but under Trump they’ve demonstrated some flexibility. Sanctuary cities would be one example.

We can declare these elected representatives guilty of opportunism, and maybe self-righteousness – they probably wouldn’t have reached their high chairs if they weren’t. But are they hypocrites? Only, it would seem, if states’ rights are a principal on which they’ve explicitly based their positions. By these standards, the GOP, and social conservatives in particular, look much worse lately.

Jeff Sessions appealed to states’ rights on civil forfeiture. Trump appealed to states’ rights on abortion. Ted Cruz appealed to states’ rights on gay marriage. Sean Spicer and numerous other conservatives have appealed to states’ rights on transgender bathrooms.

Which brings us back to Marijuana: In their capacity as government officials, each of these men have expressed opposition to a state’s right to legalize cannabis.

Charges of hypocrisy do not extend, by any means, to all Republicans. At the National Review, a leading voice for traditional conservatism, they’ve called cannabis law a state’s right issue. In resistance to red-state orthodoxy, a number of prominent conservatives have chosen to avoid the subject of federalism entirely. To libertarians like Rand Paul of Kentucky, cannabis laws boil down to individual liberty. To tax crusader Grover Norquist at Americans for Tax Reform, it’s a matter of national security and fiscal prudence. Even Sarah Palin, (still an opponent), calls it a “minimal problem.”

The recent weaponization of “states’ rights” in American politics has followed a clear pattern. Much like “values” became a popular catch phrase during the mid-2000’s, social conservatives have adopted states’ rights as a smokescreen to avoid what might otherwise become frank, honest, and – to a nationwide audience especially – harsh or nonsensical discussions on hot-button social issues. Marijuana has yet to qualify.

Life, liberty, and equality are principles requiring little elaboration. But as long as Americans continue to reward duplicitous politicians, detailed accounts of reason and intent may be too much to ask. It is a benefit, however, to which we are certainly entitled. Hamilton and Jefferson would agree.

 

 

 

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