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Occasional columns by the author of The 37th Amendment: A Novel

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How the First Amendment Came to Protect Topless Dancing. By Susan Shelley. Kindle edition.

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Marijuana, Prohibition and the Tenth Amendment

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 federalism.

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 instance."

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.

Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on "How the First Amendment Came to Protect Topless Dancing." Both are now available in eBook editions from Amazon.com.

Source notes: The Madison quotation is from Federalist No. 45, available online at http://thomas.loc.gov; the Justice Thomas quotation is from U.S. v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483 (2001), available online at www.findlaw.com.

© Copyright 2003 by Susan Shelley

This article first appeared in the Columbia (Missouri) Daily Tribune on February 2, 2003.

Click the title to read the column

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The Motive for War: How to End the Violence in Iraq

The Secret Life of the Bill of Rights

The Tyranny of the Children

A Plan to Get Out of Iraq: Blackstone's Fundamental Rights and the Power of Property

Cornered: The Supreme Court's Ten Commandments Problem

How to Get Congress to Foot the Bill for Illegal Immigration, and Fast

Why There Is No Constitutional Right to Privacy, and How to Get One

Judicial Activism and the Constitutional Amendment on Marriage

Marijuana, Prohibition and the Tenth Amendment

A Retirement Plan for Sandra Day O'Connor

How the First Amendment Came to Protect Topless Dancing

The Great Death-Defying California Recall Election

The Meaning of CNN's Confession

The Bill Bennett Mystery

Susan Shelley is running for the California Assembly in California's 45th District, the west San Fernando Valley.

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