Thanks, Howard, for opportunity to guest blog this month. I’ve spent a lot of time lately thinking about marijuana — in a scholarly way, of course. In particular, I’m concerned about the horizontal-federalism implications of state-by-state pot decriminalization. I recently co-authored, with Anne Mostad-Jensen, an article in the Boston College Law Review arguing that states may invoke the Supreme Court’s original jurisdiction to challenge marijuana legalization in Colorado. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2540640. We distinguish our theory from the complaint lodged by Nebraska and Oklahoma with the Supreme Court. Nebraska and Oklahoma seek to enforce the Supremacy Clause, contending that Colorado’s venture violates the federal Controlled Substances Act. In contrast, we advocate a nuisance theory and assert that the Court should award damages to a prevailing state, using the Coase Theorem as its guide.
This article has led many to presume that I am anti-pot. Not so. Rather, I consider myself pro-federalist. This month I am going to (try to) rehabilitate my good name.
As my thesis adviser, Gerry Neuman, once observed “federalism permits the majority in each state to choose how far above the constitutional minimum the exercise of fundamental rights will extend locally. Some states will afford more freedom than the mean; others will afford less than the mean. All states, in making these choices, will be exercising the independently valued freedom of local self-determination within their respective spheres.” 135 U. PA. L. REV. at 314.
Outside the limited bounds of “fundamental rights” — which the Constitution insulate from government intrusion — states enjoy wide latitude to criminalize conduct that offends the moral sensibilities of their respective polities. As even the Ninth Circuit has noted, the Constitution “does not recognize a fundamental right to use marijuana.” Raich v. Gonzales, 500 F.3d at 866.
Reasonable minds can differ about whether marijuana’s negative externalities justify the costs of its prohibition. The recent trend toward decriminalization in several states has been hailed by many as an example of Brandeisian experimentation. But states cannot choose between decriminalization and prohibition in a vacuum. Marijuana is the most lucrative cash crop in the U.S. The resulting “high demand in the interstate market will draw” weed acquired in decriminalized states into the black markets of their prohibitionist neighbors. Gonzales v. Raich, 545 U.S. at 19. So how can states exercise their “freedom of local self-determination” to “afford more freedom than the mean” or “less than the mean” with regard to marijuana policy? A State, like Colorado, that chooses to decriminalize the drug implicitly imposes its choice upon its neighbors, inhibiting their “freedom of local self-determination.” Conversely, if a prohibitionist state, like Nebraska, is able to quell marijuana decriminalization in Colorado, then it interferes with the latter’s power to “afford more freedom than the mean.” Marijuana decriminalization presents “one of the most important federalism conflicts in a generation.” Erwin Chemerinsky, et al., 62 UCLA L. REV. at 77.
My colleague, Jessica Berch, and I will be blogging about these issues all month.
Posted by Chad DeVeaux on December 1, 2015 at 01:08 PM