Marijuana, Prohibition and the Tenth
By Susan Shelley
Sooner or later the question will have to be asked:
Does the federal government have the power under the Constitution to stop
cities and states from legalizing marijuana?
The answer may be no.
Federal law bans the possession of marijuana. But
if a simple federal law can ban marijuana, why did Prohibition of alcohol
require a constitutional amendment?
A little history answers that question. The U.S.
Constitution was ratified in 1789 to provide a framework for governing a
nation composed of thirteen separate, sovereign states, each with its own
state constitution and government. This was a new concept known as
James Madison explained that the federal government
would have only the powers delegated to it by the Constitution. Those powers
would be "few and defined," he said, while the powers remaining in the state
governments would be "numerous and indefinite."
The states remained suspicious that the new federal
government would encroach on their powers. They demanded and got ten amendments
to the Constitution that specifically banned Congress from passing laws on
matters that were understood to be within state control. The Tenth Amendment
flatly declared, "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."
In 1919, the United States enacted a national ban
on the manufacture, sale or transportation of intoxicating liquors. Because
the Constitution did not give the federal government the power to regulate
alcohol, Prohibition required a constitutional amendment, which was approved
by two-thirds of the House and two-thirds of the Senate, then ratified by
the legislatures of three-quarters of the states.
In 1933, the nation reconsidered. A constitutional
amendment repealing Prohibition was approved by two-thirds of the House and
two-thirds of the Senate, then ratified by the legislatures of three-quarters
of the states.
Why did the country go to all that trouble if Congress
could simply have declared alcohol a "controlled substance" and made it legal
or illegal with a simple majority vote and a presidential signature?
If marijuana is grown, distributed and consumed within
state borders, and the state government decides that under some circumstances
that is not a crime, by what authority does Congress override that judgment?
Why is marijuana today different than alcohol in 1919?
The Supreme Court ruled recently that the federal
Controlled Substances Act does not contain an exception for medical necessity.
Lawyers for the Oakland Cannabis Buyers' Cooperative argued that, exception
or no exception, the Controlled Substances Act "exceeds Congress' Commerce
Clause powers" and infringes the "fundamental liberties of the people under
the Fifth, Ninth, and Tenth Amendments."
The Supreme Court did not want to talk about it.
"Because the Court of Appeals did not address these
claims," Justice Clarence Thomas wrote, "we decline to do so in the first
The Court may not be able to
duck the issue much longer. If the people of each state choose to decriminalize
marijuana in some circumstances, the Constitution plainly reserves to them
the power to do so.
© Copyright 2003 by Susan
This article first appeared in the
Columbia (Missouri) Daily Tribune on February