“High on Federalism” – by William J. Watkins, Jr.

As the new year rolled in, lines formed at Colorado pot shops. Some customers seeking to secure their first legal purchase of Mary Jane had to wait several hours. Once they made it into the shops they were struck by sticker shock: Top-shelf marijuana (not Mexican ragweed) was going for $400 per ounce. Of course, the pot dispensaries were not the only ones doing a booming business. Colorado Green Tours, an outfit that buses visitors to the various dispensaries, described itself as being deluged by “a tidal wave of business.”

Even the federal government has stepped aside and allowed the pot sales. Under the Controlled Substances Act, the sales in Colorado violate federal law. However, Attorney General Eric Holder has given word to states legalizing recreational marijuana that federal law enforcement will look the other way, so long as the states carefully regulate the production, processing, and sale of weed.

In some ways, the legalization efforts in Colorado and Washington (which is running behind on crafting and implementing its regulations) are substantial victories for federalism. These states actually succeeded in persuading the federal government to back off the enforcement of a national regulatory regime that has been upheld in the Supreme Court as recently as 2005.

There is recognition that divergent local cultures and circumstances should guide lawmaking. For example, while the state of South Carolina is nowhere near following in the footsteps of Colorado and Washington; it is at liberty to adopt laws that best reflect the temperament and situation of its population. A one-size-fits-all remedy, which has been the theme of 20th- and 21st-century legislation, is eschewed. Colorado and Washington also further goals of experimentation and competition in policymaking. Based on what happens in these two laboratories of democracy, other states can better determine what course they should chart. They can observe the effects on tax revenue, crime, and addiction before deciding whether to abandon or loosen marijuana-prohibition policies.

Nonetheless, it says much about American society that victory in the realm of truly federal—not national—principles came about because a remarkable number of people want to get high. They want a euphoria delivered by THC, the active ingredient in marijuana. The people rose up against national authority not because of domestic spying by the National Security Agency, the targeting of Tea Party organizations by the Internal Revenue Service, or efforts to nationalize healthcare.

No, they simply want to smoke dope.

Americans are so dope crazed that one cannot put a letter in the mailbox and flip the flag up without a justified fear of drug addicts cruising through the neighborhood and stealing mail in the hopes they will find something to aid them in counterfeiting checks, negotiating fraudulent or altered checks, and then using the proceeds to buy more mind-altering substances.

Aristotle understood that living well in the polis consisted in endeavors that actualize the virtues of the rational part of the soul. Centuries later, Edmund Burke observed that liberty in a civilized society often depends on the people’s ability and willingness to place chains on their own appetites. These focuses on virtue and self-restraint are alien to our postmodern society. Individual determination of what it means to live well and the unloosening of any restraint on the appetite are the hallmarks of America in 2014.

Under a just reading of the Constitution, it is undoubtedly within the purview of the people of the states to decide whether they will prohibit, allow, or regulate marijuana and similar substances. But with so many other “national issues” calling for state and local experimentation, it is telling that first successful 21st-century effort to reduce federal authority has come in the area of recreational drug use and the people’s demand for easy access to THC.

Chronicles: A Magazine of American Culture (February 2014)

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