Do I believe that marijuana should be legalized? Yes. Would I vote for legalization if I were a member of Congress? Yes. Would I support bills that decriminalize marijuana at the state level? Yes. Would I have voted for either the Colorado or Washington initiatives that legalized, rather than merely decriminalized, marijuana in those states? No. Would I have signed the bill that Colorado governor John Hickenlooper did to establish a regulatory scheme for marijuana in his state? No, I would have vetoed it.
At first glance it doesn’t sound logical that I favor legalization of marijuana and yet would oppose the various initiatives at the state level to do so. How, exactly, are these seemingly conflicting viewpoints not contradictory?
The answer lies in the second question I ask. The other four questions all deal with state-level issues. That second question is one of federal power. Individual policies are important, but there is something even more important than individual policies. That is respect for the federal Constitution, which includes acting in accordance with its provisions.
Article VI of the Constitution provides:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution
Under that authority, the United States Code mandates that state officials shall take an oath along the following lines before entering office:
I, A B, do solemnly swear that I will support the Constitution of the United States.
To that effect, New York State requires the following oath of its officials (Art. XIII, §1):
I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of ……, according to the best of my ability
So why does all of this matter?
Marijuana is a Schedule I drug under the Controlled Substances Act. The Supreme Court, in Gonzales v. Raich has held even state medical marijuana statutes invalid because there is an absolute federal prohibition. The reason? The federal Constitution’s Supremacy Clause, which states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Whether we like it or not we are all bound by the United States Constitution. Our laws may vary from state to state, and we certainly will have differences on policy, but, in the end, we share that common bond. This includes a commitment to change policy within the Constitution’s bounds and not through extraconstitutional means. Accordingly, any change to marijuana policy must start at the federal level. Applying pressure may eventually effect change, but we must be cognizant, and acknowledge, constitutional requirements. When state officials ignore these requirements they violate their duty to support the Constitution.
Perhaps the best comparison to help put this issue in perspective is the ongoing fight over implementation of the Affordable Care Act. Many Republican governors have attempted to thwart implementation of the ACA in their states. They are rightly criticized for their willfully ignoring the Supremacy Clause. When it comes to marijuana legalization at the state level the core issue is exactly the same; it’s only the product/service that is being regulated that is different.
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