Lessons for Federalism from Colorado's Pot Legalization
It's ironic that one of the few states' rights battles won in recent times was Colorado's decision to legalize marijuana in the teeth of federal laws to the contrary.
Pot really isn't legal in Colorado, of course. The federal government still bans the stuff. And in Gonzales v. Raich (2005), the Supreme Court held that the federal ban is valid and the supreme law of the land. Last I looked, Colorado was still part of the "land."
But as is its constitutional prerogative, Colorado has removed its own (i.e., state), criminal penalties from the sale of marijuana to adults over 21, so long as certain regulations are followed and participants pony up specified kickbacks to the state in the form of taxes and fees. President Obama's practice of disregarding laws he doesn't like has left Colorado with at least a temporary victory.
Now here's the irony: Since 1940, authorities in Washington, D.C. have done many dreadful things while acting in excess of their constitutional powers. They have locked up American citizens without trial. They have executed American citizens without habeas corpus. They have quashed the career hopes of millions. They have sent soldiers to fight and die in undeclared wars. They have established surveillance systems to monitor the personal lives of innocent citizens. They have adopted social policies that largely destroyed inner-city families. They have inflicted severe damage on our health care system and our monetary system, and have burdened our country with unimaginable debt.
Yet none of these has provoked push-back so successfully as Washington's ban on a totally unnecessary recreational drug. And -- even more ironically -- a drug that, unlike the targets of so many other regulations, really can be harmful. Perhaps the only comparable success against federal encroachment was repeal of federal Prohibition, another ban on a potentially harmful recreational drug.
From Colorado's marijuana "legalization" some federalism advocates draw a conclusion that is both (1) obvious and (2) wrong. The conclusion is that the only way to restore constitutional limits is for constitutionalists to form alliances with hard core "progressives" in areas of common concern. After all, wasn't it a right-and-left-wing coalition that successfully repealed Colorado's marijuana ban?
There are, however, at least two problems with this approach. First, the few areas of common concern are mostly very small and of limited importance. "Progressives" very rarely take a genuine pro-federalism position, and when they do, the issue is usually narrow. By any objective measure, marijuana legalization is small POT-atoes compared to massive programs like Obamacare.
Secondly -- and more importantly -- victories won by coalitions so disparate are not stable. Today's "progressive" movement is not controlled by the reasonable liberals of your granddaddy's generation. Today's "progressivism" is increasingly a totalitarian movement. In other words, a critical mass of its adherents genuinely believe that there are no limits to what they can make government do to the rest of us.* As is true of other totalitarians, they see any victory won for "freedom" as merely opening the door for more coercion.
There are many examples:
* "Progressives" campaigned for a "woman's right to choose" contraception or abortion, but no sooner did this become government policy, than they began promote laws forcing conscientious religious objectors to pay for conception and abortion.
* Most "progressives" favored legalizing homosexual behavior (and I agree) under the banner of freedom. But no sooner had they won freedom for this form of behavior than they began to use government to promote it -- by adopting policies that grant insurance and other civil privileges to homosexual behavior at others' expense and by deploying "anti-discrimination" laws to intimidate, silence, and punish dissenters.
* During the campaigns to legalize previously illegal sexual behavior, one of the Left's key arguments was that government does not belong in such personal decisions. But they sang quite a different song when the opportunity arose to pen all of us up in Obamacare.
Only a fool would think the hard Left will be satisfied with freedom to use, or not use, marijuana. Within a short time, "progressives" will begin to agitate for direct or indirect public subsidies for use, and for government crackdowns on anyone who objects to it. (Possible first step: Making it illegal to refuse to hire or serve users.)
I believe the battle for federalism can still be won -- and that, indeed, that it will be won. But it has to be won with a coalition that will preserve the victory. History teaches that coalitions between democrats and totalitarians do not last long: If the totalitarians remain in the coalition, they will quickly take over (cf. Czechoslovakia, 1948). Conservatives and libertarians should, therefore, seek their allies from the broad center -- the Main Street political moderates -- by convincing them of the need to return to constitutional restrictions on federal authority.
In the short term, that may be a tougher victory. But once won, it will be a far broader and more ensuring one.
* In 2009, I ran an experiment: During a controversy over the University of Montana's use of state resources to publish soft pornography, I challenged the "progressives" frequenting a well-traveled web site that I co-moderated (1) whether they would agree that promoting porn should not be a government function and (2) if they could identify any sphere of life whatsoever that they thought was outside government's proper scope. I received many responses to my questions -- quite a few of them vulgar -- but not a single affirmative one.
Rob Natelson is Senior Fellow in Constitutional Jurisprudence, Independence Institute & Montana Policy Institute, and Professor of Law (ret.), at the University of Montana