Pot-Smoking Segregationists?

The Drug Policy Alliance notes that drug warriors have started comparing defenders of state medical marijuana laws to "Southern segregationists who defied national civil rights laws." At the American Bar Association's annual convention over the weekend, Mark Quinlivan, the Justice Department's senior trial counsel, drew that analogy, arguing that "states can't selectively assert their independence from the federal government on national issues….You cannot cherry-pick your federalism."

When Rep. Mark Souder (R-Ind.) made a similar point during a recent congressional debate, Rep. Sheila Lee Jackson (D-Texas) offered this rejoinder:

I disagree with the interpretation of nullification when, in fact, it is an issue of states' rights that will not be harmful to others. I believe the federal law is relevant when the federal law seeks to solve a problem that is, in fact, harmful overall to all Americans. The civil rights example that the gentleman from Indiana used was an issue where the United States wanted to fall on the side of what was right and end the most heinous of behaviors in the 20th century, and that was segregation, lynching; and so we wrote civil rights laws to give equality to all Americans.

Drug warriors, of course, would argue that medical marijuana laws are "harmful to others," so that standard does not really work. Jackson gets at a more useful distinction when she mentions lynching, segregation, and, more generally, unequal treatment under the law. To the extent that such evils involved state action (or deliberate inaction), federal intervention was justified by the 14th Amendment.

But drug policy reformers cannot so easily escape the constitutional implications of "civil rights" laws targeting private discrimination. The Supreme Court has upheld such laws under a very broad reading of the Commerce Clause, which is also the constitutional pretext for the Controlled Substances Act.

In the 1964 case Heart of Atlanta Motel v. U.S., the Court said a ban on racial discrimination by "places of public accommodation," including hotels, restaurants, and gas stations, was within Congress's authority because such businesses may cater to interstate travelers. The Court also held that "Congress had power to enact appropriate legislation with regard to a place of public accommodation such as appellant's motel even if it is assumed to be of a purely 'local' character, as Congress' power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce."

This kind of reasoning certainly seems sweeping enough to encompass, say, marijuana cultivation in California, even if the crop is intended purely for medical use by state residents. Medical marijuana users might travel out of state, taking their supply with them. Even if they never leave California, their pot smoking might impair their productivity (or so drug warriors could claim), which could ultimately affect interstate commerce. And so on.

Supporters of federalism in drug policy do not have to defend Jiim Crow. But I think they do have to reject the expansive reading of the Commerce Clause that has been used to justify federal bans on private discrimination.