Authored By The Worden Report
Pot in Colorado: A Pretzel in American Federalism
On November 6, 2012, Colorado’s citizens approved with a 55% majority a marijuana-legalization measure that allows residents over the age of 21 to possess up to an ounce. The measure also allows for the commercial growing and selling of pot. More than a month later, the government of Douglas county in Colorado passed a law prohibiting companies from growing or selling cannabis. Meanwhile, the U.S. law continued to make the growth, sale, possession or use of pot illegal. Over all, it would seem to be a case of federalism as a pretzel of sorts, all twisted up into itself. This case study can be used to point to a more perfect union in terms of federalism.
The pot leaf. source: Mother Jones (who else)
We can begin to straighten out the pretzel by remembering that the federal regulation is expressly on interstate commerce. The over-reach of this clause, as in including an Iowa farmer’s growth and personal consumption of wheat in interstate commerce simply because the latter is impacted, renders the federal system at cross-purposes with itself. To say that something affects interstate commerce is to say that the “something” is not interstate commerce. For otherwise, we would be saying that interstate commerce affects itself. To say that you affect me implies that you are not me; it would be nonsense to say that I affect myself. It would not be said because it is obvious that I affect myself because I am myself. Put more abstractly, a cause and effect must be distinct rather than the same thing. The U.S. Supreme Court had constructed quite a pretzel out of the U.S. Constitution’s interstate commerce clause, and the view that federal and Colorado law are at odds is but one consequence. In other words, conflicting laws is one of the costs of the expansive interpretation of what counts as interstate commerce. Federal encroachment does not come without compromising federalism itself—essentially turning it against itself internally.
The conflicting laws of Colorado and the U.S. on pot could be straightened out, at least in theory, by confining the U.S. statute to pot that is transported across state lines. Put another way, the legality of a Colorado resident possessing or using pot does not extend beyond Colorado’s borders. Problem solved. Unfortunately, interstate commerce is not so confined in terms how the federal statute is written. Having direct effect within Colorado, federal law understands itself as going beyond actual interstate commerce on the use and sale of pot.
Moving beyond the “federal-state” twist in the pretzel, it is also the case that the prohibition on the growth or sale (but not possession and use!) of pot in Douglas county conflicts with the result of the referendum, which was Colorado-wide. Jack Hilbert, chair of the Board of Commissioners in Douglas, said, “Our county has never passed or supported anything regarding the legalization of marijuana. We tend to be very conservative.” However, the legalization proposition received 46%–nearly a majority!—in Douglas. Moreover, is not Douglas part of Colorado and therefore bound to the will of the majority? Whereas Colorado is a semi-sovereign republic within the U.S., Douglas County is itself a legal creature, or subdivision, of Colorado. To view Douglas in Colorado as akin to Colorado in the U.S. would be to commit a category mistake. This is not to say that this must be so.
Drawing on the federal theory of Althusius, a German political theorist and lawyer whose Political Digest was published (in Latin) in 1604, we can extend American federalism to down to the county and even the city level. Althusius theorized that individuals could be members of guilds and villages, and the latter two, as federations of the individuals, could in turn be members of province or regional federations. These federations in turn could be the members of kingdom-level federations, which in turn could be the members of an imperial federation. Althusius had the Holy Roman Empire in mind as a practical example of an imperial federation. The important point about this theory is that every level of socio-political association is isomorphic (i.e., having the same form, namely federal).
In the case of Colorado (and the other American republics that are members of the U.S.), applying Althusius’ theory would mean that Douglas, as a county/province/region, would be in modern terms “a state” within Colorado, just as Colorado is a state within the United States. To get the framework down, Douglas corresponds to Althusius’ province level, while Colorado is kingdom-level and the U.S. is imperial in scale and political type (i.e., consisting of kingdom-level polities). It is important to note that the kingdom-level being referred to here is in the early-modern rather than medieval sense. Hence, I am referring, for example, to polities such as Britain rather than England, and the Netherlands rather than Holland. The American republics were crafted out of that mold (i.e., early-modern kingdom-level), and the U.S. itself was viewed as an empire. Hence, the enumerated powers of the U.S. Government came from the imperial powers of the British monarch in the British Empire, rather than the legislative powers of the House of Commons in the host kingdom.
Applying Althusius’ federal theory, Douglas would be a semi-sovereign federation of towns and cities within Colorado. Douglas would thus be able to counter Colorado’s law within the confines of the county. In diverse large states like California, Illinois, Florida and New York, extending federalism down to the county level would enable a better tailoring or fit of law to the preferences of the people. In Illinois, for example, ideological preferences in Chicago in the north are quite distinct from those in Carbondale in the south. The same can be said of those in New York City and Buffalo, and Miami and Jacksonville.
In short, American federalism can be both straightened out by having everyone “draw inside the lines assigned” and extended by states becoming federal systems themselves. The county executives could sit in the state senates, which would then be distinct from the lower houses, which represent the people. Similarly, the governors could sit in the U.S. Senate (which would resemble the European Council), while the U.S. House represents the people directly. Better and more federalism would match or allow for the inherent diversity that exists especially between states but also within at least some states. In philosophical parlance, it could be “turtles all the way down” in terms of “isomorphic federalism” (trying this expression out at a dinner party would not exactly get you more invites). Put another way, as of the end of 2012, we should have been seeing much more legislative diversity—a bricollage or quilt of sorts—across the continent, and even within our various fifty United States. The sheer strangeness of this expression—a rather common one in the early U.S.—may point to pent-up demand for various positions on ideological-related issues like pot, abortion, and gay marriage within the empire.
In other words, we should have been seeing much more legislative activity on significant issues at the state level even though two states had legalized pot and five had legalized gay marriage. Why, for example, had pot not been legalized in Oregon, or at least in northern California? Why had not more blue states, such as Illinois, legalized gay marriage? Just as prices have a habit of being “sticky” in going down while quite easily going up, the one-size-fits-all nature of American “federalism” had come to eclipse or even snuff out diversity expressed legislatively on the state level.
Ana Campoy, “Colorado County Rejects Pot Law,” The Wall Street Journal, December 27, 2012.
Authored By The Worden Report
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