Jump to ContentJump to Main Navigation
Prohibition, the Constitution, and States' Rights$
Users without a subscription are not able to see the full content.

Sean Beienburg

Print publication date: 2019

Print ISBN-13: 9780226631943

Published to Chicago Scholarship Online: January 2020

DOI: 10.7208/chicago/9780226632278.001.0001

Show Summary Details
Page of

PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 28 July 2021

Pot and Popular Constitutionalism

Pot and Popular Constitutionalism

Prohibition’s Lessons for the Marijuana Legalization Debate

(p.241) Coda Pot and Popular Constitutionalism
Prohibition, the Constitution, and States' Rights

Sean Beienburg

University of Chicago Press

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

Chicago Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs, and if you can't find the answer there, please contact us.