Federalism’s Paradoxes: Marijuana, Firearms, Marriage

February 27, 2015 Updated: April 23, 2016

It can be argued that federalism – the division of a national and local governing system – has been the most divisive issue throughout American history ringing through to the present day.  In fact, federalism led to the American Civil War as southern states did not take kindly to the federal government and northern states telling them what practices were permissive.  In today’s present society, there are three prominent federalism issues that could be coming to a head very soon dividing conservatives who favor states’ rights and liberals who favor the federal government, with wide ramifications for upcoming elections and general constitutional quandaries. 

Marijuana Legalization

The battle for marijuana legalization has been fought for quite some time.  It was first “legalized” in 1996 in California but only for medicinal purposes with several other states following suit.  It was not until 2013 when Colorado and Washington state voters, through ballot initiatives, legalized marijuana for recreational purposes.  What made the legalization in Colorado and Washington so significant is its direct contradiction to the Controlled Substances Act (CSA), a federal law prohibiting various types of drugs.  Marijuana is listed as a Schedule I drug – along with heroin and other deadly substances.

President Obama and Attorney General Eric Holder maintained that they would not prosecute individuals who possess or consume marijuana in Colorado or Washington, a power they possess under their enforcement discretion.  Many feared and foretold that given marijuana’s listing under the CSA and still being illegal under the federal government regulations, federal agents could conduct raids within Colorado and Washington.

Marijuana was legalized for recreational use in Alaska on Feb. 24, 2015 – the first red state to do so.  Additionally, beginning on Feb. 26, recreational marijuana use on private property is legal in the District of Columbia, which has set off a firestorm among several members of Congress who have ultimate jurisdiction over the city and review all D.C. laws before enactment.


Firearm regulation is another hot-button issue between Democrats and Republicans.  A main contention concerning federalism is the inconsistency of laws from state-to-state.  Generally, more liberal states have more stringent rules against open carry laws and access to certain higher capacity and powerful firearms while more conservative states are more permissive.

A recent example from New Jersey highlights such a conundrum.  A single mother from Pennsylvania was arrested last summer in neighboring New Jersey, a liberal state with strict gun laws, when she was pulled over in a traffic stop and, in good faith, notified the officer of her handgun in the glove box.  The woman did not have a New Jersey permit but she had a valid Pennsylvania permit.  The woman bought the firearm after she was mugged returning to her car after work one night.  She now faces a three year mandatory minimum sentence.

Same-Sex Marriage

The Supreme Court will hear oral arguments this term regarding the constitutionality of the right to same-sex marriage.  Petitioners are challenging state constitutional bans on same-sex marriage, some of which were passed through ballot initiatives by voters.  Typically, marriage has been an issue left up to individual states to regulate, much like drivers licenses.


The federalism debate begs further examination of the question; is it better to have a top down approach or allow more autonomy among the states?  States’ rights advocates have been fighting since the country’s inception to gain more autonomy and separation from the federal government.  The Supremacy Clause of the Constitution states, “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 (emphasis mine); and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Herein lies the conundrum for many states’ rights advocates – states are bound by federal law, which is typically broad and allows for states to expand upon – yet many revile a lack of uniformity on several issues and try to punish those that do not match up with their interests.

For example, several members of Congress have maintained that Washington D.C. is breaking federal law with the implementation of their marijuana initiative and have threatened to jail city officials if it is implemented.  After the ballot initiative was passed in November, some Republican members of Congress sought to rescind the measure, which was met with stark opposition.  In a compromise, Congress withdrew D.C.’s ability to tax legal marijuana and thus stripped the city of any attempts for revenue, a blow considering Colorado made $7.5 million in revenue last August alone from marijuana sales.  Ironically, states that have passed ballot initiatives that amend their constitution to ban same-sex marriage are conservative and abhor efforts by federal courts to deny the wills of their voters.

An editorial that appeared in the conservative weekly newsmagazine the Washington Examiner urged Republican members of Congress not to block D.C.’s marijuana ballot initiative, under the apt title, “Federalism requires allowing marijuana legalization in D.C.”  The author plainly expressed the feeling that opposition to a popular voter initiative would be “betraying the [federalism] values that led [conservatives] to victory” at the polls in November. 

Conversely, liberals, who typically favor policies such as legalizing marijuana, should be troubled by the way in which the marijuana legalization is unfolding.  In a strange ideal reversal, liberals are applauding marijuana legalization (while rightly criticizing conservative hypocrisy on the matter), but their admiration for the issue is establishing two legal systems that contradict the Constitution’s Supremacy Clause.  For liberals who believe legalizing is a formidable method to make up revenue gaps, they should advocate for a top down approach starting with the federal government’s blessing (though, one can argue they essentially have that with the Department of Justice’s announcement it will not prosecute those in states that have legalized marijuana despite the plant’s continued classification as a Schedule I substance).

Two (conservative) states have filed suit in federal court to compel the federal government to enforce federal drug laws against Colorado’s legal marijuana as federal law preempts that of the states.  The two surrounding states suing (Nebraska and Oklahoma) believe that “legal” marijuana in Colorado is crossing into their borders, thus creating a larger law enforcement issue.  Many legal scholars believe the suit lacks merit and point to similar issues pertaining to labor laws or firearms, as “[l]iberals have, in fact, advocated the enactment of stronger federal gun control laws,” in comparative cross over situations.  

What conservatives desire, and what would make the most sense in terms of firearm regulation, is for an overarching, top down approach.  Ignorance is no excuse for breaking the law.  Yet many citizens are not aware of all the myriad regulations pertaining to firearms and ammunition in each state.  For some with concealed or high powered weapons on their person, driving across state lines can be a gamble depending on what each state’s laws are because there is no universal concealed carry permit.  Some states ban certain types of ammunition and firearms further confounding the issue.  Many conservatives were outraged when the single mother from New Jersey was arrested, yet, under a federalist system, each state is entitled to expand upon federal regulations.  The common sense solution, uniformity from the federal government on down, is antithetical to conservative ideals and would likely create a battle over what types of fire arms and ammunition would be permissible, thus rendering it impractical.


The United States fought the Civil War over states’ rights.  The nation is still continuing this battle to some degree today.  States’ rights will likely be a big issue in upcoming elections spurred on by federal court decisions and more ballot initiatives.  Public policy will be forced to address these issues head-on further down the road.  The big questions left to be answered are how far down the road, and how damaging could the results be?