LEO MORRIS: Marijuana legalization has redefined federalism

Leo Morris, NS Editorial Page Editor

I’ve read every story – and there are a ton of them – about the excitement of a Republican lawmaker proposing to make medical marijuana legal in Indiana and the drama of the Indiana Association of Prosecuting Attorneys vehemently opposing the idea.

In only a couple of the stories did I see a lone sentence, buried deep within the copy, to the effect that “federal law still considers marijuana illegal.” And nowhere in all the thousands of words of copy did I see the term “federalism” to help explain what is going on.

When the Founders sat down to draft the Constitution they wanted to avoid the kind of unitary system of government that England had imposed, one in which a central authority dictated everything. And they wanted to improve on the deficiencies of their own confederation, in which states had so much power the central government was powerless. So they created a federalist system, designed to balance the powers of two roughly equal forces, the federal government and the various state governments.

They distrusted central power, so the states were given the upper hand. The federal government was to have only the few powers specifically spelled out in the Constitution, and all other powers were reserved for the states or the people. This is known as “dual federalism,” but it has been called “layer-cake federalism” because state and federal governments had distinct powers that did not overlap.

The Civil War and resulting three constitutional amendments turned the Founders’ intent on its head and made it clear that, although “roughly co-equal” might still hold, the federal government was now the managing partner. This paved the way for Franklin Roosevelt’s New Deal and the second iteration, “cooperative federalism” in which it was determined that everyone had to work together on critical national problems, meaning basically that the federal government muscled in on formerly state prerogatives.

The third iteration came from Lyndon Johnson’s Great Society programs. Under “creative federalism,” the federal government bypassed any pretense of consultation with the states and started dictating to cities and counties as well. Some have called this “picket-fence federalism,” with the vertical pickets representing social programs and the horizontal slats representing all levels of government working together.

“New federalism,” an attempt to turn back the constitutional clock by Presidents Nixon and Reagan was all but an abject failure. Call it “crumbs-on-the-floor federalism,” in which the states grabbed up a few pitiful morsels and declared a great victory. Any progress made was wiped out and then some by George W. Bush with federal aggrandizements like No Child Left Behind and the Patriot Act. This was the “put those crumbs back down, kid” phase.

Which brings us to the present and that simple “federal law still considers marijuana illegal” sentence. What we have now, initiated by President Obama and as yet undiluted by President Trump. The federal government still has control but tells states to pretend that it doesn’t.

When it comes to marijuana, this iteration of federalism has created what one wit has called “Schrodinger’s Weed” – legal and illegal at the same time. So far, 29 states have approved some form of medical marijuana, and eight have made it a legal recreational drug, despite the fact that the federal government still classifies it as a Schedule 1 drug just like heroin and LSD.

Legal profits are already in the billions for an enterprise on a shaky foundation that could be toppled in a heartbeat by Attorney General Jeff Sessions, a fierce anti-drug warrior from the old school.

I admit to being ambivalent about marijuana. Indiana’s prosecuting attorneys vastly overstated the drug’s dangers, but its proponents also greatly exaggerate its harmlessness and potential benefits.. Legalizing it would be neither a catastrophe nor a great blessing.

Some brave states like Oregon and Washington rush in, betting that before the Supreme Court or Justice Department drops the hammer, they can create a tipping point of marijuana acceptance that will make federal re-engagement untenable. And some states, like, of course, Indiana, will hang back and wait to decide if that’s a train they want to jump on or a potential wreck from which they want to stay out of the way.

Leo Morris is a columnist for The Indiana Policy Review and former opinion editor of the News-Sentinel.