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Under the Constitution, Regulating Marijuana is Mostly a State Concern

Under the Constitution, Regulating Marijuana is Mostly a State Concern

A growing number of states are defying the federal marijuana ban, not only by easing their own laws, but by actively cooperating with marijuana growing, processing, and use. Many contend that pot should be a state, rather than a federal, concern.

The U.S. Supreme Court has ruled otherwise. In Gonzales v. Raich (2005), the court held that under the Constitution, Congress may use its Commerce Power to ban even “window box” medical marijuana, whether permitted under state law or not.

The Commerce Power derives from two constitutional provisions: (1) the Commerce Clause, which grants Congress authority to “regulate Commerce . . . among the several States,” and (2) the Necessary and Proper Clause, which says Congress may “make all Laws which shall be necessary and proper for carrying into Execution” certain itemized grants—including the Commerce Clause.

In Gonzales, the court found that marijuana growing and use were economic activities. It then followed some 20th century cases that (contrary to earlier rulings) allowed Congress to use the Constitution’s Necessary and Proper Clause to regulate economic activities with “substantial effects” on interstate commerce.

Was the Court correct? Answering that question requires us to determine what the Constitution meant to those who adopted it. Even though the Founders did not discuss marijuana specifically, a vast array of sources tells us their answer. The sources include debates from the Constitution’s framing and ratification, and writings informing us how key constitutional phrases were used in legal documents.

All students of the Constitution know it splits authority between the states and the federal government. What many do not recognize is that it deliberately divides responsibility over some closely-connected activities. For example, the Founders often observed that commerce and domestic manufacturing are tightly related. Nevertheless, their Constitution granted power over several forms of commerce to Congress, but left authority over manufacturing to the states. The Founders divided authority this way because protecting liberty was a higher priority than regulatory coordination.

So the Supreme Court is wrong to conclude that because an activity “substantially affects” interstate commerce it follows that Congress may regulate it. Many activities, economic or not, substantially affect commerce without being constitutional targets for Congress.

When the Constitution was adopted, the phrase “regulate commerce” had well-understood content. It referred to laws governing mercantile trade and certain associated matters, such as tariff barriers, commercial finance, navigation, and marine insurance. It did not include other aspects of the economy. In fact, many of the Founders are on record as specifically assuring the public that Congress would have no jurisdiction over agriculture, manufacturing, land use, or (according to Chief Justice Marshall) “health laws of every description.”

Growing marijuana is, of course, a species of agriculture.  Processing is manufacturing. The ban on personal consumption is a health regulation. The Constitution places control over all those activities squarely within the state, not the federal, sphere.

So does Congress have any power over marijuana? Under a correct reading of the Constitution, the answer is, “Only some.” The Commerce Clause allows Congress to restrict or ban the marijuana trade across national and state boundaries. Moreover, the Necessary and Proper Clause recognizes some additional authority.

The background and history of the Necessary and Proper Clause establish that the provision is not a grant of authority to Congress, but merely a rule of interpretation. The Clause does, however, acknowledge Congress’s prerogative to pass certain laws “incidental” to regulating commerce. For example, if Congress prohibits interstate trade in marijuana, it might also require interstate shippers to disclose whether their cargoes included the substance—but only if disclosure is reasonably necessary to enforcing the congressional ban.

However, incidental powers do not extend to comprehensive regulation of areas, such as agriculture or manufacturing, reserved to the states.

In sum: Under the original Constitution as ratified by the American people, Congress may regulate, or even ban, marijuana from interstate and foreign commerce. It also may exercise some incidental authority. But it may not constitutionally regulate or prohibit in-state growing, processing, or use of marijuana. For better or worse, those are exclusive concerns of the citizens of the several states.

Rob Natelson served as a law professor for 25 years, teaching, among other courses, constitutional law and First Amendment. He is the author of The Original Constitution: What It Actually Said and Meant. He is a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.



How We Know a National Amendments Convention Is a ‘Convention of the States’

How We Know a National Amendments Convention Is a ‘Convention of the States’

Most state legislatures have filed applications with Congress demanding a national convention for proposing constitutional amendments. Americans are asking just what kind of convention the Constitution requires.Nearly all experts believe an amendments convention is a “convention of the states”—the traditional term for a meeting in which representatives of state legislatures deliberate on the basis of sovereign equality. The rule at a convention of the states is that each state has an equal voice.

This would be a familiar procedure: There have been about 40 conventions of states in American history—although this one would be the first called to propose constitutional amendments under the authority of the Constitution itself.

Other commentators—predominately, but not exclusively, convention opponents—argue an amendments convention should consist of popularly elected delegates, perhaps allocated by population.

The Constitution itself merely refers to the assembly as a “Convention for proposing Amendments.” So we must look at history to understand how the Founders understood the term.

In an 1831 decision, the U.S. Supreme Court said an amendments convention is a convention of the states. My newly-issued research study confirms the Supreme Court was correct.

During the century before the Constitution was drafted, conventions among North American colonies, and later among states, met on average every three or four years. After Independence in 1776, the pace quickened: The Constitutional Convention of 1787 was the 11th interstate gathering in 11 years. All were assemblies of state delegations, operating as ambassadors from their respective states.

The delegates were officially called “commissioners” and the meetings dubbed either “conventions of the states” or by some well-recognized synonym.

The fact that the founders knew only of the “convention of the states” model of interstate meeting suggests strongly they intended an amendments convention to work the same way. The new study shows how the “convention of states” approach fits within the Constitution they drafted and approved.

Additionally, the study collects numerous documents in which Founders specifically labeled an amendments convention a “convention of the states.” All these documents originated when Americans still were debating the new Constitution. Remarkably, everyone seems to have shared the view that an amendments convention would be a “convention of the states,” irrespective of whether he favored the Constitution.

For example, in New York legislative debates, two lawmakers referred to an amendments convention as a “convention of the states.” One was John Lansing Jr., who had served as a framer in Philadelphia. Similarly, in South Carolina, another framer, Charles Cotesworth Pinkney, referred to the amendments convention in much the same way.

Newspaper articles used the same term. Leading founders such as George Washington, James Madison, and Alexander Hamilton made comments that reveal their assumption that an amendments convention is a convention of the states.

Perhaps most persuasive of all are the references to “convention of the states” in state legislative resolutions and other government documents. During 1788 and 1789, several state legislatures debated whether to formally apply to Congress for a convention, primarily to obtain a bill of rights. The very first application, passed by the Virginia legislature, used the term “convention of the states,” and the second (New York’s) used a common synonym.

The study observes: “Within a few months amid the ratification debates, five states in different regions of the country—three in favor, one against, and one neutral—issued seven official documents identifying an amendments convention as a convention of the states.”

For a such a gathering, the state legislatures decide how many commissioners to send to the convention and how they are chosen. Previous experience suggests state legislatures will select most commissioners. That ensures the commissioners are experienced in public policy and official drafting.

When the convention is called to order, each delegation will have an equal voice. Although the assembly theoretically could change that rule, no convention of states ever has.

If delegations from all 50 states attend, then 26 will be able to propose an amendment. Their proposal will, however, be merely a proposal. To become part of the Constitution, three-fourths of the states (38) must approve, thereby assuring the amendment has strong popular support.

This article originally appeared in

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

Among the best tools for interpreting the Constitution are public explanations by its advocates made during the ratification fight. These explanations helped shape how the public understood the Constitution. They reassured the public about what the Constitution did NOT mean.

Those statements were at the heart of the ratification deal.

One reason the Federalist Papers are so useful because they were exactly this sort of literature. But they are tough going for many readers, both now and then. That helps explain why the more readable essays of Tench Coxe likely had as much influence with the common people as The Federalist.

So when Coxe explains what the Constitution means, we must attend respectfully.

Here is Tench Coxe writing about the Article V amendment process. This passage comes from an op-ed in the Pennsylvania Gazette of June 11, 1788:

The sovereign power of altering and amending the constitution . . . does not lie with this foederal legislature, whom some have erroneously apprehended to be supreme—That power, which is truly and evidently the real point of sovereignty, is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. The foederal government cannot alter the constitution, but the representative bodies of the states, that is, their legislatures and conventions, only can execute these acts of sovereign power.

From the foregoing circumstances results another reflection equally satisfactory and important, which is, that as the foederal legislature . . . cannot prevent such wholesome alterations and amendments as are now desired, or which experience may hereafter suggest. . . . If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.

This statement is a very fat one, but here’s its skeleton:

1. Some people are claiming that under the Constitution, Congress will hold supreme power.

2. But real supremacy belongs to those who can amend the Constitution.

3. The Constitution puts that power in the hands of the state legislatures and state ratifying conventions—the “representative bodies of the states.”

4. Congress cannot alter the Constitution.

5. And Congress cannot block amendments it doesn’t like—by, for example, refusing to call an amendments convention that two thirds of the state legislatures want.

Let’s look at some of the wider implications:

* Congress can’t pass amendments alone. This argues against claims that Congress can gerrymander the membership of a “convention for proposing amendments,” change deadlines in midstream, or otherwise dominate the amendment process.

* By contrast, state legislatures and state conventions can amend the Constitution any time they want, and Congress can’t block them. This necessarily means that only state legislatures control the convention for proposing amendments. It means they can limit the scope of their applications, of the call, and of the convention. And it means they can choose and instruct their commissioners as they wish.

* This power to amend is in the “representative bodies of the states.” When a state legislature or state convention operates under Article V, it acts as a direct representative of the people, not as an arm of state government. Thus, Coxe’s article tends to support modern case law and undercut claims that state governments can direct or change the amendment process through laws and compacts.

Interposition: Standing Up to the Feds

Interposition: Standing Up to the Feds

Interposition was James Madison’s term for one of the checks and balances in our Constitution. The Constitution contemplates a range of methods, from public relations campaigns to an Article V amendments convention.stop

Just as the legislative, judicial, and executive branches of the federal government have the privilege and obligation of checking each other, so do the states and federal government.

A recent paper published by the Heartland Institute explains interposition and the ways the states can pursue it.  I’ve had a lot of requests for copies.

You can find the interposition paper here.

What is an Amendments Convention “Application?” What is a “Call?”

What is an Amendments Convention “Application?” What is a “Call?”

Rob at James Madison's home in Virginia
Rob at James Madison’s home in Virginia

Article V of the Constitution states that “The Congress . . . on Applications of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

As I pointed out in my book, The Original Constitution: What It Actually Said and Meant, 18th century writers were imbued heavily with Latin language usage, and the English of the time often revealed a Latinate flavor.

The dominant meaning of the Latin verb “applicare” pertained to one thing touching or connecting to another. The word was used, for example, of a ship touching harbor.

A very similar meaning prevailed in 18th century English usage, as revealed by a survey of twelve 18th-century dictionaries. “Apply” and “application” referred to the joining of one thing with another, either literally or (in speech) metaphorically. Thus, when one applied to another, one addressed the other. Today the word sometimes implies a supplication, but when the Constitution was adopted, that was not the principal sense. An “application” could come from an equal, a superior, or a petitioner.

In fact, the language of Article V rules out the possibility that when the states apply to Congress they do so as mere petitioners or suppliants. This is because the applications of two thirds of the states are binding on Congress. If Congress receives the requisite number of applications, it is required to call.

A call was a particular kind of application. Specifically, it was either an invitation (implying that attendance was voluntary) or a summons (implying that attendance was mandatory). The words in the Constitution do not provide explicitly whether a congressional call requires state legislatures to send commissioners to a “Convention for proposing Amendments.” But the courts, quite properly, tell us that Article V is to be read in the context of historical usages, and the prevailing 18-century custom was that state participation in a multi-state convention was voluntary. This conclusion is consistent with the basic idea of a “convention of states” as a gathering of sovereigns or semi-sovereigns.

In view the foregoing, the following facts about 1780s convention practice are not surprising:

* A recommendation by an interstate convention to the states that authorized it sometimes was called an application. Because an application was merely an address from one person or entity to another, a recommendation was indeed a form of application.

* A request to the Confederation Congress to call a convention was sometimes referred to as an application.

* The convention call itself was sometimes referred to as an application.

Article V did not spell out convention details because the procedures were so well known that doing so was unnecessary. But in a few cases, there were ambiguities in usage, so Article V clarified them. One example was that Article V clarified how the terms “application” and “call” were to be used in amendment practice.

One last point: Some activists argue that the state’s right to apply for a convention is a state power retained by the Tenth Amendment because the right of a state to apply predated the Constitution. The courts disagree, so as a practical matter this claim is pretty much academic. The courts have decided that all legislative and convention authority exercised under Article V comes from the Constitution, and not from powers reserved by the Tenth Amendment.