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Why It's Technically Illegal to Smoke Weed in a State Where It's Legal

It's one example of state and federal law being at odds.

by Jacob Hillesheim
October 29, 2019 | Our Future

You’re feeling like an evening in tonight, and decide to smoke some weed. It’s 4:20 somewhere, right?

One of your buddies will be joining you soon, but you get a head start. The doorbell rings. Expecting your friend, you swing the door open… for the law enforcement official investigating a nearby crime. Yeah, they definitely know.

What happens next?

The answer to that question depends entirely on what state you live in and who the law enforcement official works for. If you live in a state where marijuana has not been legalized, then you’ve just handed the police probable cause. If it’s state or local law enforcement and you live in one of the now 11 states where recreational marijuana is legal, you’ve got nothing to worry about.

However, if it’s the FBI, you could be arrested for breaking federal law, even if marijuana is legal in your state.

How can this be? Why is it you're smoking Schrödinger’s joint – simultaneously legal and illegal – every time you light up?

The answer, dear friend, is federalism.

The U.S. Constitution explicitly divides power between the national government and state governments. “Expressed powers,” such as coining money, granting patents and copyrights or negotiating with foreign powers, belong to the federal government.

Others, like running schools and maintaining public safety, are “reserved” to the states. “Concurrent powers,” like levying taxes or building roads, are shared by both.

Good or bad?

Federal and state law are usually in broad agreement with one another. Even if they aren’t, federalism provides some advantages.

If we’re a government “of the people,” maybe it makes sense for different people in different parts of the country to have different laws. If you don’t like it, you can always “vote with your feet” and move to a state without those policies.

Most obviously, federalism divides power between governments, theoretically ensuring that neither can become so powerful they can violate your rights. And if you think either government has, you always have another government to appeal to.

Finally, states can function as “laboratories of democracy,” trying out ideas and policies on a smaller scale before being implemented nationwide.

On the other hand, voting with your feet is expensive and impractical. Federal systems are less efficient. Governments with completely centralized power don’t need to worry about coordinating with states or devoting resources to dealing with contradictory policies. And with contradictory policies comes confusion.

Worst of all, it means your daily life is dictated by geography. Simply by virtue of being born in a certain state, you may have more or fewer freedoms than other people.

The same for same-sex marriage

In practice, however, state and federal law constantly influence each other, with same-sex marriage providing a perfect example.

Before the U.S. Supreme Court’s 2013 ruling in United States v. Windsor struck down the Defense of Marriage Act, federal law did not recognize same-sex marriage. However, advocates had won marriage equality in 12 states and the District of Columbia. The Supreme Court rarely acts against a national consensus, so the Court probably doesn’t issue that ruling without those 12 states and a national plurality in favor of marriage equality.

That federal ruling then influenced other states, where legislatures and courts used Windsor as justification to strike down same-sex marriage bans. By 2015, 38 states recognized some form of same-sex marriage, which made it all the easier for the Supreme Court to find a right to marriage for same-sex couples in Obergefell v. Hodges.

Will it change?

So, the federal government’s marijuana policies and those of 11 states are in direct conflict. What happens next?

A black and white line-drawing illustration of weed brownies. Rewire PBS Our Future Marijuana
Will your famous brownies ever be 100 percent legal? Time will tell, but history seems to be bending that way.

One possibility, of course, is that nothing changes. If this is the least satisfying scenario, it’s also the least likely. Some combination of popular and legal pressure will probably ensure sometime soon that, at a bare minimum, people know if eating their edibles is a criminal act.

Another is that marijuana laws follow the path of same-sex marriage. As more states legalize marijuana, other states feel more comfortable following suit. Eventually, the Supreme Court finds some reason to strike down marijuana prohibitions in holdout states.

Of course, unlike equal protection of the law, there’s no right to marijuana use in the Constitution, and finding one would stretch the limits of constitutional interpretation, meaning that there’s little that could force states to legalize marijuana if they don’t want to.

The mostly likely scenario is that marijuana follows the example of the death penalty, where the federal government has its own policy and states are allowed to have their own.

In fact, Congress is considering this as we speak. The Strengthening the Tenth Amendment Through Entrusting States (or STATES, get it?) Act, which would essentially cede marijuana policy to the states, is currently in committee in both chambers. Given the growing majority of Americans who support legalizing marijuana, my money is on federal law changing with or without a court ruling.

If all of this seems like a bit of a mess, you’re not wrong. The occasional mess, however, is the price we pay for our federal system.

Jacob Hillesheim
Jacob Hillesheim is a Minnesota educator, historian and ice cream enthusiast with master’s degrees in teaching and learning and in history.
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