On April 10, the Maryland Senate voted 35-12 to allow marijuana use by prescription. The bill now moves to the House. Fourteen other states currently allow medical marijuana use. California is taking a step further and will allow its voters to choose to legalize marijuana use for all adults on this November’s ballot.

Alcohol was prohibited after the Constitution was amended to authorize its prohibition by the federal government. Notwithstanding the obvious implication by analogy of alcohol to marijuana, the federal government has never seen a necessity to amend the Constitution to attempt to enforce a federal ban on marijuana. It just decided it could, and then, it did.

The U.S. Supreme Court upheld the federal ban on marijuana in Gonzales v. Raich, 545 U.S. 1 (2005), citing that even homegrown pot that never crosses state lines is “commerce among the states,” which Congress may regulate pursuant to its Article I, Section 8 powers. Whether you think pot should be regulated or not, a plain reading of the Constitution, with a little bit of horse sense, will tell any right-thinking person that smoking pot you grew in your yard is not an act of “commerce among the states.” Although the states might have the power to regulate marijuana, the federal government most certainly does not.

It is not entirely clear as to whether the Supreme Court was sober when it issued its Gonzales opinion. Speaking under anonymity, one source confided to journalists that, just before the ruling was handed down, he heard an unnamed Justice in chambers say, “Pffffffft! Here.” Speculation remains as to whether the Justice was passing along the opinion or something else.

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