A Constitutional Loophole?

Marijuana and other recreational drugs are illegal everywhere in the U.S. of A. because of a piece of federal legislation passed in 1970 called the Controlled Substances Act (CSA). So how is it, you might ask, that criminalizing alcohol in 1919 required a Constitutional amendment, yet criminalizing any and all other drugs required nothing more than Congress passing a law? The answer involves what you might call “finding a loophole” in the Constitution. After briefly explaining that so-called loophole, I’m going to outline what I think is another loophole that might just negate the first.

To begin with, the 10th amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, any powers not specifically given to the federal government by the Constitution are given to the states or the people. That’s why alcohol prohibition required a Constitutional amendment: the power to criminalize alcohol had to be specifically granted to the federal government by the Constitution.

But those tricky folks in the Nixon administration figured out a way around that pesky old 10th amendment. They justified the CSA with the Commerce Clause of the Constitution, which gives Congress the power “To regulate Commerce with foreign Nations, and among the several States.” Since a lot of recreational drug use involves international and interstate commerce, the CSA can be seen as Congress exercising its power to regulate the drug market. It doesn’t matter that it is a black market, ironically because of the CSA. The law doesn’t distinguish–a market is a market–so the Constitutionality of the CSA has been upheld.

But what, you may be wondering, about drug-related activity that occurs entirely within a single state, or even entirely within one’s home? Believe it or not, the Supreme Court has decided that the national and/or international market is still involved. Yes it’s true. If, for example, you were to grow your own marijuana in your own home and consume it there, you are still affecting the market because you’re not spending your money in it. Hard as it is to believe, the Supreme Court supports the Constitutionality of the CSA because it helps protect the business interests of black market drug dealers. In other words, the CSA created and now protects the black market for illicit drugs.

But what about the medical marijuana market? Couldn’t it be said that states that currently allow medical marijuana have created a brand new market? Actually a set of new markets, each entirely self-contained within its state. Markets that do not involve interstate or international commerce. Legitimate markets that are entirely different from the illicit black market created by the CSA. Markets that do not fall under the federal government's authority to regulate commerce.

So it seems to me (I am not a lawyer) that the Constitutionality of the CSA could be challenged on these grounds. Granted, the Supreme Court decided that the illicit drug market can be “controlled” by the federal government. But we’re no longer talking about that market. The legal, state-controlled markets for medical marijuana are completely separate and different, and in no way involve any commerce outside of their respective states. What do you think? Could this be a legitimate loophole? Any Constitutional lawyers out there care to comment?