In the political discussion of whether or not Initiative 502 to legalize marijuana would be legal, in the light of conflicting federal law, one facet of the question is being overlooked: Is the federal law constitutional?
A century ago, all three branches of the federal government agreed that the government did not have the authority to prohibit the production, import, transport and sale of “intoxicating beverages” in lieu of an amendment for that precise purpose to the Constitution. Accordingly, the 18th Amendment was passed by Congress and ratified by three-quarters of the states in order to make possible this prohibition.
Possession and use of intoxicating beverages were not prohibited by the amendment or by any subsequent law. On what constitutional basis is it now legal for the federal government to prohibit not only the manufacture, transport and sale of certain drugs, but also possession and use, under penalty of prison?
Moreover, the federal government’s role in regulating interstate commerce has been expanded beyond anything the framers of the Constitution had in mind, and now permit the federal government to disregard a plethora of state laws, including those legalizing medical marijuana.
This expansion of authority under the commerce clause came about in part when, in 1943, the Supreme Court ruled against an Ohio farmer who had the temerity to grow some wheat for his own purpose, thereby interfering with federal control of commerce.