Advocates for marijuana legalization won another victory last month when Governor Dan McKee signed new legislation legalizing recreational marijuana in the the state. New Hampshire—where cannabis is “only” decriminalized and legal for medical purposes—is now the only state in New England where recreational marijuana is not legal.
With Rhode Island now added to the legalization bloc, this means more than 144 million Americans now live in states where recreational cannabis has been legalized. That’s 43% of the US population.
Proportion of US population by cannabis legalization status:
Rhode Island is also one of a growing number of states where recreational cannabis has been legalized through the legislative process rather than through statewide referenda or voter initiatives. Initially, recreational legalization was only politically possibly through voter initiatives, as legislators refused to approve legalization themselves. The first successful cases of this were in Colorado and Washington State in 2012, and that was followed in 2014 by Alaska and Oregon. Since then, recreational cannabis has been legalized through a variety of methods in 15 other states for a total of 19.
As with gun policy, school vouchers, and apparently abortion policy, cannabis policy is increasingly dominated by state-level legislation. With cannabis, this comes in spite of the fact that federal policy has not actually been changed in this regard. Marijuana is still formally targeted by by federal bureaucrats as an illegal substance. This continues to hamper commerce in the states in many ways. For example, it remains illegal for federally regulated financial institutions to deal directly with cannabis-related businesses.
Some Republican politicians have even attempted to ratchet up federal prosecutions. For example, in 2018, then-Attorney General Jeff Sessions rescinded the Cole memo. This was part of an effort to re-assert greater federal control of cannabis policy. Yet, Congressional delegations from states where recreation cannabis is legal—both Republican and Democrat—have shown an unwillingness to support federal efforts in this regard. As a result, in 2017, Congress voted to deny the Justice Department funds to enforce federal laws against medicinal marijuana. Sessions’s plan received bipartisan opposition in Congress. Bipartisan efforts as federal legalization have been repeatedly introduced, such as the “Strengthening the Tenth Amendment Through Entrusting States (STATES) Act” which, is essentially a “states’ rights” bill supported by both parties in the name of reining in the drug war. (An anti-legalization bloc, based mostly in southern states, has been able to kill efforts to strengthen more localized control in drug policy.)
These state-level movements to ignore or oppose federal policy are all firmly rooted in ideas of federalism, decentralization, and the Tenth Amendment of the Bill of Rights. From the prohibitionists who cling to centralized political power, however, we routinely hear the same slogans and pro-Washington legal theories about “federal supremacy” or how whatever Congress says is “the law of the land.”
Both conservatives and the Left support these ideas when it serves their purposes. The Left, of course, wants uniform rule from Washington when it comes to guns. Conservatives have done the same on drugs. Republican Attorneys General even sued Colorado in an attempt to impose federal drug laws on Colorado. What these Republicans wanted was essentially a federal ruling rendering localism and the Tenth Amendment null and void. Fortunately they failed.
This centralizing impulse, of course, is very popular in Washington. We hear it frequently from those deeply mistaken constitutional scholars who want federal judges to use the “Incorporation Doctrine” to decide what is and what is not legal in every state. These people—both conservatives and leftists—can often be found angrily declaring that federal law is essentially sacrosanct and state-level nullification “ain’t gonna happen.” The reality, however, is that it has happened as is happening.
After all, political and ideological realities are such that state-level legalization has effectively meant marijuana has become de facto legal in nearly half of the country. The strategy has also helped to illustrate the potential for success with state-level legal efforts as weakening or nullifying federal law. Pro-immigration groups have tried similar tactics in some states, such as California. Similarly, some anti-gun-control policymakers—as in Missouri—have passed legislation in which state officials are prevented from enforcing federal law within state borders. Those who love the Washington regime and the status quo will no doubt continue to press for reform only at the center. These people continue to cling to the long-discredited idea that Washington will be “fixed” if we “elect the right people.” Good luck with that.
