Spencer, Sessions, and the modern misconception of constitutional law

There is a difference between the letter of the law, the spirit of the law, the supremacy of one law over another when such laws conflict, and there’s absolutely a difference between moral laws and mere legality.

Sean Spencer yesterday said that he expected to see greater enforcement of federal law that pertains to recreational marijuana, including in states that have legalized under state law.  This view would use the supremacy clause to override state laws expressed under the ninth and tenth amendments.  Would such a crackdown be legal and enforceable?  I’m absolutely sure that the courts would see it that way, outside of the court of public opinion, where it absolutely loses.

Under essentially any view of the law, states like Colorado have every right passing laws that legalize, and prevent state resources from enforcing federal laws that say otherwise.  Under the modern conception of American law, however, the federal government is under no obligation to respect such state laws when they conflict with federal laws because of the supremacy clause.  Enforcement of things like the Controlled Substances Act can be enforced by federal agencies like the DEA, even when state laws prevent the cooperation of local authorities.  Whether or not this is the correct interpretation of law, however, hinges on two things.  One, whether the accepted view of the ninth and tenth amendments allow for the federal government to act beyond enumerated powers, and two… whether the Controlled Substances Act is within the scope of such enumerated powers.

When I speak of the “modern conception of American law”, I speak primarily of how much differently judges view the limitations of the Constitution compared to how such limitations were historically viewed.  Decades of case law have heaped layers of complexity and guidance to such constitutional questions, and any error not overturned near the beginning of such a process only compounds all errors moving forward.

Amendments to the constitution are significantly harder to pass than mere legislation.  The requirements are much more arduous, which is why in 229 years there have only been 27 amendments.  Ratification of three-fourths of the states is much harder to achieve than a simple majority in Congress.  So ask yourselves–after prohibition of alcohol passed Congress in 1917, why did they then submit the 18th amendment to the states for ratification rather than merely passing prohibition through the “normal” lawmaking process we’ve come to expect today?  Why did their passage of prohibition have no effect until the 18th amendment was ratified?

The answer is that the Constitution grants no enumerated power to the federal government to prohibit the use of substances, and any American law that is not constitutional is no law at all.  There was, in 1917, no serious arguments presented that the prohibition of alcohol would NOT require an actual constitutional amendment, because it was obvious that our Constitution never gave, or even contemplated giving, our federal government that power.

The first attempted regulation of pot directly by the federal government was the Marihuana Tax Act of 1937.  It recognized that Congress did have the power to tax specific things, even if it didn’t have the power to directly prohibit pot outright.

Of course, the common understanding of our constitution has changed, and many view it as a “living document”.  The Comprehensive Drug Abuse Prevention and Control Act of 1970 was passed with nary a whimper about it’s ultimate constitutionality that prevented alcohol prohibition until passage of an amendment just over fifty years prior.  Many excuses have been given in that time frame.  The most common is probably the interstate commerce and the necessary and proper clauses of the Constitution, interpreted much more expansively than they were in the past.  FDR made sure the federal court system bent to a more permissive posture towards him with threats and coercion, and following judges followed suit.  Today, they don’t even bother to give excuses for why new legislation is constitutional, as the assumption has become that any law passed by congress is an allowed expression of power unless it is directly contradicted specifically by limitations in the constitution such as the bill of rights.

With decades of case law reinforcing the view that the spheres of human activity Congress is allowed to regulate are virtually unlimited, a return to an understanding specifying the limits of enumerated powers seems unlikely.  Judges are unlikely to radically depart from the interpretations accepted by their recent predecessors and law professors.  The American public has so accepted the idea of presumption of power in favor of government action via majority votes in Congress or even unilateral executive actions, that I’m not sure how the genie can be put back in the bottle.  My implication that federal legislation passed nearly fifty years ago is unconstitutional under the traditional understanding of federal power is not an implication that will win in any modern court.

However, my preference for federalism applies.  The federalism proposition that states should be able to “opt out” of federal law like marijuana prohibition is not one I actually accept, and not just because of the supremacy clause.  That view of federalism is actually too weak and still presumes too much federal power.  The view of federalism that is most appropriate is that without a constitutional amendment, the federal government should not be allowed to declare federal prohibition in the first place.  States should have the right to make any kind of drug they wish illegal within their own borders, and I refuse to accept even that states should be required to opt out of federal law that should not exist in the first place.

Being a realist, I’m willing to accept that what I believe should happen simply isn’t going to.  There is merely too much precedent set which backs up an error in interpretation of constitutional law from roughly a century ago.  I’d settle for Trump’s first term seeing a separation of Hemp from the cannabis umbrella in federal law, a move of cannabis off of schedule one, or federal legislation preventing federal enforcement of pot laws in states that have legalized, even if it’s limited to medicinal states.  Hell, at very least some prosecutorial discretion that respects state rights.  But make no mistake–those are merely first steps in a larger battle to reclaim both the liberties we’ve lost in the war on drugs and a return to traditional interpretations about what our Constitution allows our federal government to do.

–Gary Doan

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