Posted by Curt on 23 April, 2018 at 1:21 pm. 1 comment.


If hypocrisy is the tribute that vice pays to virtue, then Sen. Chuck Schumer, D-N.Y.,  has delivered a whopping tribute to the constitutional doctrine of federalism.

In a series of tweets, he announced: “Today, I am formally announcing my plan to decriminalize marijuana at the federal level. It’s time we allow states, once and for all, to have the power to decide what works best for them. I have long believed that states should function as their own laboratories of democracy. My bill is a step in the right direction aimed at removing the barriers to state legalization efforts.” —

Schumer was joined by Sen. Elizabeth Warren, D-Mass., who said: “The federal government needs to get out of the business of outlawing marijuana. States should make their own decisions about enforcing marijuana laws.”

The hypocrisy of these positions was quickly revealed by journalist John Pitts, who replied, “Now do guns. And abortion.” Schumer and Warren’s interest in federalism would be welcome if it were general and sincere, but it is limited and insincere.

The idea behind federalism, as the Framers conceived it, was that the federal government should do only a few things that states couldn’t handle well individually, such as national defense, immigration and naturalization, and interstate and foreign commerce. Federal powers to act on those subjects were enumerated in the Constitution, and where the Constitution didn’t enumerate a federal power, the power to regulate (or not) remained with the states. As James Madison wrote in The Federalist No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”

Limiting the federal government’s power paradoxically made it more effective, by keeping it focused on important topics, and also made it less subject to corruption. That’s because, since it had power over only a few things, often very visible things, it usually wasn’t worth bribing. And letting states handle most of the regulation meant that they could serve — in a term invented by Justice Louis Brandeis and appropriated by Schumer — as “laboratories of democracy,” experimenting with policies that could be adopted by others if they succeeded and avoided by others if they failed.

Federalism as originally intended also helped protect people’s liberty. If you didn’t like your state’s approach to lawmaking, you could pick up and go somewhere else. (People still do this when states grow too oppressive and when taxes are too high, as the large numbers of people leaving places like CaliforniaIllinois and New Jersey for greener pastures indicate). But the traditional variety of federalism has been eroded by the federal government’s expansion to regulate more and more areas that the Framers never intended.

I very much support the Framers’ kind of federalism. I wish that our political class took it seriously, and that the Supreme Court would enforce the 10th Amendment and the doctrine of enumerated powers much more vigorously. But let’s be honest: This isn’t what Schumer and Warren are talking about.

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