Tenth Amendment Defense in New Jersey

Medical marijuana has achieved another success, this time in New Jersey. The legislature has passed the Compassionate Use Medical Marijuana Act and Governor John Corzine has already pledged to sign it. Marijuana law reformers can count another state, fourteen in all, in their victory column but another group of political activists, those concerned with the Tenth Amendment to the Constitution also have reason to celebrate.

When the law makers in New Jersey decided to change their policy concerning Cannabis use they did so with the full knowledge that the Supreme Court has ruled that federal law supersedes state policy when it comes medical marijuana. In effect these legislators were asserting their rights spelled out in the Tenth Amendment. In an article for the Tenth Amendment Center: the tenther grapevine author Michael Boldin points out that an “honest reading of the Constitution with an original understanding of the Founders and Ratifiers makes it quite clear that the federal government has no constitutional authority to override state laws on marijuana.” In his dissent of Gonzales v. Raich, the decision asserting federal supremacy on this issue, Justice Clarence Thomas countered the majority’s argument that the commerce clause applied by saying that the respondents “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.” Boldin calls this effort to justify an unconstitutional federal intrusion into the affairs of the various states at best dubious and “at worst an intentional attack on the Constitution and your liberty.”

The Democratic Party has long history favoring the constitutional right of the states to resist federal interference, unfortunately most of this support has been associated with unconstitutional slavery and racial discrimination. Would it not be a good thing for both us and them if they reaffirmed that tradition in a much better cause, a more humane and effective drug policy?

Plainly, the issue of whether the politicians in New Jersey have the right to legitimize the use of medical marijuana has implications far beyond the limited subject of cannabis. For example, even before it has passed numerous state attorney generals are talking about challenging the federal health care reform bill with it thousands of unread, by those voting for it, pages and unfunded mandates. No matter what medical reform law President Obama signs there will surely be attempts to nullify it on Tenth Amendment grounds.

Cross posted on The Trebach Report