The Supremacy Clause
By David Henderson
In which our economist attempts legal scholarship
Some opponents of California’s Proposition 19, which I posted about earlier, claim that if it passes, California’s state law will conflict with federal law on marijuana. Then, they argue, because of the supremacy clause of the U.S. Constitution, federal law will dominate. Cato Institute’s Tim Lynch has dealt nicely with the issue. He points out that even with the current understanding of the supremacy clause, there would be no conflict between state and federal law. By passing Proposition 19, Californians will simply be saying that the state repeals certain state laws on marijuana. This is key because currently, many local and state officials go around cooperating with the feds on busting marijuana operations. By not providing these resources, the state and local governments will substantially reduce anti-marijuana enforcement in California, even if the feds go ahead and do their enforcement. Nothing in Proposition 19 prevents the feds from being as oppressive on marijuana as they wish to be.
But I don’t think Tim Lynch went far enough. I admit freely that he has interpreted the supremacy clause the same way mainstream legal scholars interpret it. But that’s not how I read the Constitution. I go to what it actually says. And here’s what the U.S. Constitution says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Notice the conditional. The clause does not say that the laws of the United States shall be the supreme law of the land. It says that laws made in pursuance of the Constitution shall be the supreme law of the land. So show me in the Constitution, which, remember, enumerates powers to the feds and gives all other powers to the states and the people, where the Constitution gives the government the power to regulate marijuana. And remember that in 1919 virtually everyone understood that the Constitution gave the feds no power to ban alcohol. That’s why they needed an Amendment to the Constitution to do so.