Why states may legalize drugs

By Katie Kieffer

Cannabis plant

Image credit: “Cannabis sativa L.”by Lollyman on Flickr via Creative Commons.

I believe that states have the constitutional right to legalize drugs. For, the Constitution is silent on the federal government’s ability to regulate or ban substances that adults choose to digest at their own peril—or medical relief.

The Constitution is so silent on this matter of individual liberty (choosing to digest or use drugs) that in order to ban the sale of alcohol during the Prohibition era, we passed the 18th Amendment. When we wised up and realized that banning alcohol doesn’t work, we repealed the 18th Amendment via the 21st Amendment. I contest that federal drug laws are unconstitutional because they do not stem from a constitutional amendment.

Since the Constitution defines our freedoms negatively, states and individuals retain all rights that are not explicitly delegated to the federal government. The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, because the Constitution is silent on drugs, states alone have the constitutional power to regulate drugs.

Voters in states like California have exercised their constitutional right to legalize drugs, specifically medicinal marijuana to help cancer patients and those suffering from chronic pain due to autoimmune diseases like multiple sclerosis.

Californians aren’t flower power hippies. These voters realize that if it’s constitutional for individual Americans to binge on four-to-five alcoholic drinks in one sitting—drinks that incidentally do nothing to relieve chronic pain—it makes sense to legalize a far less lethal substance like marijuana with verified pain-relief benefits.

A prestigious medical study published by The Lancet in November 2010 reveals that alcohol is more lethal than heroin and crack cocaine and drastically more harmful than marijuana, ecstasy and LSD. On Jan. 6, 2012, The Lancet reaffirmed these findings with a global study revealing that: “marijuana was the world’s most widely consumed illicit drug … [and] the least likely of all illicit drugs to cause death,” as The New York Times relays.

We have not amended the Constitution to outlaw drugs. Nor did the war on drugs germinate in Congress. Instead, successive court rulings and executive orders have unconstitutionally banned drug use at the federal level—even to the point of overriding the sovereignty of states that explicitly legalize drugs.

Medicinal marijuana supporter

Medicinal marijuana supporter. Image credit: “20091008-DSC_0974” by  NoHoDamon on Flickr via Creative Commons.

‘And when the court decides to apply the Bill of Rights to state law, it winds up trampling … on the most important safeguard of our liberties: the division of power between the federal and state governments. … By the middle of the twentieth century the “due process” clause within the Fourteenth Amendment had come to be seen as the catchall phrase for federal intervention,’ writes author Jason Lewis in “Power Divided is Power Checked.”

Today, the Federal government, via the Department of Justice, has violated the separation of powers that the Founding Fathers wrote into the Constitution. Federal agents allege that medical marijuana dispensaries and growers violate “federal law”—ripping out medicinal cannabis plants and destroying legitimate livelihoods overnight.

The New York Times reports: “Federal law classifies the possession and sale of marijuana as a serious crime and does not grant exceptions for medical use, so the programs adopted here, in 15 other states and in the District of Columbia exist in an odd legal limbo. … federal prosecutors have raided or threatened to seize the property of scores of growers and dispensaries in California that, in some cases, are regarded by local officials as law-abiding models. At the same time, the Internal Revenue Service has levied large, disputed tax charges against the state’s largest dispensary, threatening its ability to continue.”

The war on drugs began when President Richard Nixon bypassed Congress and declared a war on drugs on July 17, 1971. He said that drug abuse was a “national emergency” and America’s “public enemy number one.” He signed the “war” into law on January 28, 1972. By unconstitutional executive order, Nixon created the first drug czar and also created an extra-congressional agency to regulate drugs called the Drug Enforcement Agency (DEA). Successive Presidents have sustained this war.

Article I, Section 8 of the Constitution gives Congress (not the president) the “Power … To declare war.” Federalist and framer Alexander Hamilton further explains the Constitution’s checks on executive reach in The Federalist No. 78. He says the president publicly declares and enforces the laws Congress makes and the decisions or appointments Congress approves: “The Executive not only dispenses the honors, but holds the sword of the community.”

Some might object that America’s forty-year-long and over $2.5-trillion fight against drug abuse isn’t technically a “war.” But that’s a hard position to defend when scores of innocent Americans and Mexicans have died throughout our combat with brutal Mexican drug cartels. Since 2006 alone, when President Felipe Calderón declared his own war against drugs, between 40,000 and 50,000 people (depending on your source) have died in this conflict.

Moreover, the right to own your entire person is a fundamental human right and it is foundational to the Constitution. Unless you use wrongful force against another person or their property, you retain full ownership over your body. As John Locke points out, reason tells you that you fully own your body. No one else owns your body—not your neighbors, your family or the government.

Presidential candidate and physician Rep. Ron Paul explains: “All of our freedoms – the freedom of religion and assembly, the freedom of speech, the right to bear arms, the right to be free from unnecessary government searches and seizures – stem from the precept that you own yourself and are responsible for your own choices. Prohibition laws negate self-ownership and are an absolute affront to the principles of freedom. I disagree vehemently with the recreational use of drugs, but at the same time, if people are only free to make good decisions, they are not truly free. In any case, states should decide for themselves how to handle these issues and the federal government should respect their choices.”

Freedom is the power to choose between good and bad options for our own private property and body; freedom is the power to opt for healthy behaviors like prayer, aerobic exercise and strength training over unhealthy behaviors like self-mutilation, chain smoking, binge drinking and inhaling paint thinner. I think the federal government needs to respect individual freedom by deferring to the states in matters like drug use where the Constitution is silent.

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  1. glenneboy says:

    Great idea! Let's legalize meth and smack while we're at it. I'm all for State's rights but if a state is dumb enough to legalize marijuana then I have no problem with the Feds taking over. – If we want to win the war on drugs, and I for one do, lets make the penalties for POSSESSION serious. I don't think a bunch of high schoolers would toke up if they knew they would get, say, ten or fifteen years. And for dealers the death penalty isn't harsh enough. – For what it's worth I grew up in the 50s and 60s and am no stranger to marijuana but the weed out today is as nothing compared to what we had back then.

  2. flagsailor says:

    Constitutionally I agree. However how can we as a society allow self destructive behavior to continue to rip apart families and destroy our nation. If we thought the welfare roles were a burden to our society now , wait until a State legalizes drugs. I also believe the crime rate would soar as well. As a former educator I realize that 50% of violent crimes occur when an individual is under the influence of alcohol or drugs. Case in point , look at our countries deaths due to drinking and driving.

    • Lodzia says:

      According to your theory, we should go back to prohibition? How many trillions have we already spent on the drug war? It is worse than ever! Kids can get drugs easier than ever. The gov't schools have brainwashed all these kids to believe every liberal idea imaginable.
      I really don't think that people would just be taking drugs like you fear. They would not be able to use drugs and work, drive or perform dangerous tasks. There would still be some control.

  3. Lodzia says:

    Your article helps to understand why it would be necessary for each state to decide this issue. We would also save a lot more babies if each state decided on the issue of abortion too. Smaller gov't is always the answer.

    • quinster says:


      Ron Paul is often mischaracterized as being pro-abortion when he is actually for the issue being handled on the state level where action can be taken quickly, rather than waiting for the "correct" president to be elected who will then appoint the "correct" Supreme Court Justice(s) who will then potentially revisit the issue. Again, these serious issues, like murder, are best be handled by the states.

  4. quinster says:

    Excellent article Katie. I think our country's experience with alcohol prohibition shows the problem with the current drug prohibition, the "War on Drugs". The violence (and costs) associated with the gangs dealing in alcohol during prohibition was well known all over the world. Do we see this kind of violence today with legalized alcohol? Today the gang violence that affects so many as well as the large cost of enforcement and bloated prisons filled with non-violent offenders is associted with our current prohibition. Let the states handle the issue of drugs. The states are able to effectively handle much more serious issues like murder.

  5. California Libertarian says:

    Thanks, Katie.

    joshuad: The is no known dosage of marijuana that will kill you. That being said, there are no guarantees in life. Overdosage is a risk, just as extreme snowboarding or dumpster diving. People are different and have varying lifestyles. Don't live by ignorance and fear.

    bill_bailey: Lazy and shiftless? Criminal? You obviously know nothing about the user class. I know teachers, lawyers, doctors, nurses, police and firefighters who use marijuana. They are not lazy, shiftless, nor criminal, except for their refusal to obey an unconstitutional law. Don't live by ignorance and fear.

  6. Kris says:

    Katie, you provided a rock-solid argument for the constitutionality of legalizing drugs. We should never give up our freedom in favor of a bureaucrat's offer for "security," or we will cease to be the Land of the Free and the Home of the Brave. I agree with you 100%.

  7. joshuad says:

    Ms. Kieffer- After reading your position on the legalization of drugs, I was surprised to find myself agreeing with you, to a point. I come with a law enforcement perspective and have seen the ramifications of excessive alcohol and drug use. I found myself agreeing with your initial argument, but when you expand it out, it doesn't sound so good. Marijuana may have a medical benefit for some, but here in California, where you can get a medical marijuana card for colorblindness, the legalization argument lacks credibility. Furthermore, you argue that nothing in the Constitution prevents states from legalizing drugs, but who is going to pay for the medical expense of people who overdose; all taxpayers, not just the idiot who OD'ed. And, if the legalization of drugs is a freedom of choice issue, what are the consequences for making bad choices and who foots the bill for that- all taxpayers whether they support the legalization of drugs or not. Your position is sound if we lived in a society of responsible people; we don't.

  8. bill_bailey says:

    While I agree with your assessment of states rights vs federal control, there is another issue you ignore: the health implications. By this I mean the added costs to society that come from abuse of "legal" drugs. We see this with alcohol abuse and it stands to reason we will see it with other abuses as well. It is short sighted to espouse this ideal without fully thinking it through. For example, marijuanna is the most talked about drug in the legalization discussions. Everyone sights the health implications relating to certain diseases like cancer and glaucoma. But legalizing it for the community at large will produce lazy, shiftless citizens who do not produce and therefore are a burden to society (as evidenced by any "pothead" you may know) – this is the beginning of the financial disaster awaiting us is illegal drugs are made legal. This is not what was recognized by the prohibition movement. There the concern was religious not societal. Now we recognize that drug abuse is a real problem for society at large – creating a lazy and often criminal class. Lazy people have no money to buy the drugs they crave and most often resort to criminal activities to support their habits. For this you can look to any inner city neighborhood or Europe where many countries tried legalizing drugs and found these programs were abject failures. Anyway, just my two cents for a Monday morning.

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