Goldwater Institute: Rediscovering federalism, one step at a time

by Clint Bolick

Even those who oppose decriminalization of marijuana, even for limited purposes, have reason to applaud the U.S. Department of Justice's new policy on marijuana prosecutions for its consistency with principles of federalism.

The Justice Department has decided not to prosecute individuals who possess or distribute marijuana so long as they are in "clear and unambiguous compliance" with laws in 14 states that allow marijuana use for medical purposes. Although the Department couched its decision in terms of law-enforcement priorities, allowing it to concentrate its resources on drug cartels operating from Mexico, the decision has important federalism implications that could favorably impact the ability of states to protect the freedom of their citizens.

In recent years, the U.S. Supreme Court has reduced the federal government's reach under its power to regulate commerce, striking down federal laws forbidding guns in school zones and creating a federal cause of action for crimes against women, holding that those subjects were matters of state concern. But in its 2005 decision in Gonzales v. Raich, the Court ruled that federal drug laws preempted California's medicinal marijuana law even though the marijuana was locally grown and consumed.

Our system of federalism was designed to ensure that the federal government acts only within the boundaries of its defined powers and that states may give broader protection to individual liberty than does the federal constitution. The system can endure only if its principles are applied consistently. Next year, if Arizonans vote to amend their state constitution to protect health care freedom and the right to secret ballots in union elections, we will need to call upon those principles to protect our cherished freedoms.

I am under no illusion that the Obama Administration will broadly embrace the principles of federalism, especially as it seeks to push the boundaries of national power. But its action in recognizing the autonomy of states to permit medicinal marijuana will provide a useful precedent for the importance of federalism in protecting liberty.

Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.

Learn More:

New York Times: Good Sense on Medical Marijuana

Dept. of Justice memo: Authorizing the Medical Use of Marijuana

U.S. Supreme Court Media: Gonzales v. Raich