State Legalization of Marijuana and Our American System of Federalism: A Historio-Constitutional Primer
20 Pages Posted: 28 Jan 2017 Last revised: 17 Jun 2018
Date Written: January 25, 2017
Federal law, pursuant to the Controlled Substances Act, maintains a strict criminal prohibition on marijuana use of any kind. In states that have legalized marijuana, and in states proposing to do so, a fundamental conflict arises between federal powers and state sovereignty. This conflict implicates some of the most vital aspects of the structural constitution: the Commerce Power, the Necessary and Proper Clause, the anti-commandeering doctrine, and Supremacy Clause preemption.
In recent years a healthy scholarship has emerged to wrestle with the subject, providing insightful commentary and argument, but missing in the literature is an unabbreviated account of the major features of federalism that frame the legalization controversy. Also missing is a historical background situating the CSA's marijuana prohibition within the American political-legal tradition.
This article provides the reader with an extensive constitutional and historical foundation for understanding what is now recognized as "the most pressing and complex federalism issue of our time."
Keywords: federalism, marijuana, cannabis, war on drugs
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