It might appear that sooner or later state initiatives legalizing marijuana use, contrary to federal law, will be crushed in federal courts. After all, federal laws, according to Article IV of the U.S. Constitution, are the supreme laws of the land and preempt state laws. But wait. States, not the U.S. Congress, are showing greater responsiveness to the will of the people—a core American political value, and James Madison’s promise that states must be able to fend off unwanted federal initiatives has not been forgotten.
The successful passage of state marijuana statutes owes much to 19th century-era ideas that, to this day, define what it means to be an American. Most Americans accept that the will of the people, individualism and deep suspicion of despotic, central governments are legitimate American political traditions. With the expansion of suffrage and the use of ballot initiatives and referenda among states in the 19th century, citizens gained wider participation in the political process, and populism—the belief that the will of the people should guide public officials—took hold.
The Pew Research Center reports that when Americans were asked in 2017, “Do you think the use of marijuana should be made legal, or not?” 61% responded, “legal.”
American Individualism
While European societies honored a class system calling for persons in lower social status to show deference to their social betters, 19th-century immigrants in America adopted more egalitarian values and a desire for personal liberty. In America, each citizen was, and still is, free to conduct his life in accordance with his or her own conscience and to control his or her own destiny. This tradition of independent thinking among our citizens no doubt accounts for the popularity of state marijuana statutes that grant personal freedoms and choice.
Rejecting powerful central governments in Europe, early American liberalism sought freedom from a strong federal state. This distrust of “big government” is still a force in American politics and, among other factors, fuels the widespread resistance to federal laws prohibiting the use of marijuana.
Resistance to federal marijuana laws is widespread. Thirty states, representing 67% of the U.S. population among them, have authorized the use of marijuana for medical purposes. Nine of these states (21% of the population) and Washington, D.C., have also approved marijuana as a recreational drug.
James Madison’s Promise
To sell the new U.S. Constitution, James Madison argued more than 200 years ago that state governments should have the power to manage their own affairs. He wrote in The Federalist Papers: “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….”
Madison would certainly agree that both the use of medical marijuana under a doctor’s supervision and the possession of a small amount of marijuana for personal use by adults are “objects” concerning “the lives, liberties, and properties of the people” and are reserved for the states to decide. He also wrote: “If an act of a particular State [legalizing marijuana, for example], though unfriendly to the national government, be generally popular in that State … the opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State….”
On June 7 of this year, James Madison’s words echoed throughout the U.S. Congress when a bill titled “Strengthening the Tenth Amendment Through Entrusting States Act” (aka the STATES Act) was introduced by Sens. Elizabeth Warren (D-Mass.) and Cory Gardner (R-Colo.), as well as by U.S. Reps. David Joyce (R-Ohio) and Earl Blumenauer (D-Ore.) which, as it states, is aimed at “[ensuring] that each state has the right to determine for itself the best approach to marijuana within its borders.” Sen. Gardner has stated: “This act fixes this problem once and for all by taking a states’ rights approach to the legal marijuana question.”
The STATES Act has been endorsed by more than a dozen organizations, including the Massachusetts Bankers Association, National Conference of State Legislatures and American Civil Liberties Union. If it becomes law, it will not only revive the Founding Fathers’ original view of how states should manage their own affairs but also remind us that traditional American values—individualism, populism and personal liberty—still matter.
Ronald Fraser writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. He can be reached at fraserr@erols.com.
