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Prohibition, the Constitution, and States' Rights$
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Sean Beienburg

Print publication date: 2019

Print ISBN-13: 9780226631943

Published to Chicago Scholarship Online: January 2020

DOI: 10.7208/chicago/9780226632278.001.0001

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Pot and Popular Constitutionalism

Pot and Popular Constitutionalism

Prohibition’s Lessons for the Marijuana Legalization Debate

Chapter:
(p.241) Coda Pot and Popular Constitutionalism
Source:
Prohibition, the Constitution, and States' Rights
Author(s):

Sean Beienburg

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226632278.003.0012

The growing trend of state marijuana legalization is recreating the federalist constitutional controversies raised by the Eighteenth Amendment, though there are several important differences. Most obviously, there is the lack of an explicitly authorizing amendment and the language of concurrent enforcement (though, Gonzales v. Raich, decided over dissenting votes from William Rehnquist, Sandra Day O’Connor, and Clarence Thomas, enables much of the same federal authority.) Some states’ decisions to take proactive steps to regulate marijuana markets plausibly roams from inaction into nullification. And, unlike in the 1920s, where a robust climate of constitutionalism and federalism unified Americans regardless of ideology, today both are far more divisive, illustrated by the difference between anti-prohibition groups’ commitment to states’ rights and contemporary marijuana activists’ indifference to it. The divorcing of progressivism and decentralization means those seeking legalization have lost access to a potentially powerful rhetorical tool. To the extent marijuana advocates want to eliminate federal regulations, they would do well to imitate the 1920s and appeal to pivotal states’ rights Republicans who support marijuana regulation but oppose it at the national level: seeking in effect, a marijuana regime like that created by Webb-Kenyon and the Twenty-First Amendment.

Keywords:   marijuana legalization, Gonzales v Raich, states rights, Webb Kenyon, Twenty First Amendment, William Rehnquist, Sandra Day O Connor, Clarence Thomas

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