The US prohibition of cannabis is unconstitutional. The US House of Representatives banned cannabis in June 1937 based on the belief that “marihuana” makes black people and Hispanics into drug-fiend rapists. Before the vote, Republican minority leader, Bertrand Snell of New York, said, “I do not know anything about the bill.” Democratic majority leader, Sam Rayburn of Texas, was equally clueless. “I believe it is a narcotic of some kind.”
Or, as Nancy Pelosi once said about the Affordable Care Act, “We have to pass the bill so that you can find out what’s in it.”
On this 4th of July, it’s time to examine just how unconstitutional the US prohibition of cannabis really is.
How US Prohibition of Cannabis Happened
Technically, the US prohibition of cannabis did not occur in 1937. It was taxed so heavily that nearly every hemp business went bankrupt. By 1970, when the US government incorporated the official ban into the Controlled Substances Act, there wasn’t any viable hemp industry in the US.
Later, under similar racial prejudices, Richard Nixon launched the drug war. One of his henchmen who served time in prison once said:
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
How did this happen? US prohibition of cannabis is obviously unconstitutional. The 10th amendment gives that authority to the States. That’s why the Supreme Court recently overturned Roe v. Wade. It has nothing to do with “conservative judges” wanting to control a woman’s body. It’s a constitutional issue over the correct division of powers.
Abortion, like cannabis, is an issue for individual States, not the federal government.
The Commerce Clause
But the US constitution has a clause called the Commerce Clause.
The clause is short but has significantly impacted the history of the United States. And not in a good way. Courts have interpreted the Commerce Clause to give the US federal government complete control of the country. The Commerce Clause is why federalism hasn’t worked in the United States.
It reads: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
Many point to the 1942Wickard v. Filburn case as the beginning of the end. The Supreme Court ruled that punishing an Ohio farmer for exceeding a government-imposed wheat quota was justified. Even though the wheat never left his farm, let alone the state.
How the Commerce Clause makes US Prohibition of Cannabis Possible
In 2005, the Supreme Court ruled in favour of the federal government in the case of Gonzales v. Raich. This ruling stated that the Commerce Clause allows the federal government to regulate home-grown medical cannabis. Unlike Wickard, which focused on production, this interpretation means that even possession of cannabis is a national concern.
Justice Clarence Thomas dissented. In his argument, he said, “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.”
The US prohibition of cannabis is unconstitutional. Full stop.
US Prohibition of Cannabis: How Will it End?
John Stuart Mill once said,
“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant….Over himself, over his own body and mind, the individual is sovereign.”
This quote encapsulates the spirit behind the American Revolution. Before, as is still the case in Canada, the only sovereign was the Crown, represented today by Queen Elizabeth and then by King George.
After the Revolution, Americans were sovereign individuals. They ruled themselves. Power flowed from the people up to the States and then onto the Federal Government.
This principle has been lost sometime in the last 246 years.
But today, on the 4th of July, we see it reviving across the United States. And the cannabis industry is leading the way.
Starting in 1996 when California defied federal laws and legalized medical cannabis. Then, later, in 2012, when Colorado and Washington State famously became the first states to legalize recreational cannabis. Not only was this a giant middle finger to the drug war, but to the federal government’s authority as well.
The spirit of 1776 is alive now more than ever. It’s common to think America is ripping apart at the seams. That the country is fundamentally divided and a civil war is imminent. But just because you divorce your spouse doesn’t mean you need to get violent with them.
The US federal government has egregiously overstepped its constitutional limits. Return to a small, limited federal government, allowing States to govern as their populations see fit.
And if that means a prohibition of cannabis and abortions in Mississippi or Oklahoma, then so be it. So long as they allow their residents to come and go freely, then the principles of classical liberalism live on for another generation.