[Picture: U.S. Sen. Cory Gardner, R-Colo., and Attorney General Jeff Sessions.]
Over the past week, Sen. Cory Gardner placed himself between Attorney General Jeff Sessions and Colorado’s burgeoning marijuana industry. In doing so, Gardner cloaked himself in the cloth of the 10th Amendment to the U.S. Constitution. Gardner’s challenge to Sessions’ ability to overrule the right of Coloradans to self-governance is a tried and true tactic against federal overreach.
The 10th Amendment is a simple, single sentence: “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.”
As the final amendment in the original Bill of Rights, the 10th Amendment’s elegance has not been tarnished over its more than 225 years. To the contrary, as the federal government’s power has expanded, the importance of the 10th Amendment has grown in parallel. For individual states and supporters of the federalist system of government, it represents a shield against oppressive centralized power. Others see it as a wrench in the wheel of effective government. And sometimes the same person can love it in one instance and loathe it in another.
Causes championed under the umbrella of the 10th Amendment have not always been commendable. For example, in 1883 the Supreme Court used the 10th Amendment to overturn several Reconstruction era laws intended to extend protections to African-Americans. Citing the 10th Amendment, the court found it would be repugnant to the rights of states to allow the federal government to adopt laws constraining the commercial rights of individuals. The case halted the progress of equality advocates and emboldened conservative Southern Democrats to blockade civil rights legislation for decades to come. Not a single civil rights bill would pass out of the U.S. Senate until 1957.
While much analysis focuses on the 10th Amendment’s power to negate federal action, it is also the most important mechanism to proactively protect laws implemented by states. Under the “laboratories of democracy” theory, every state develops and implements the laws that best suit its citizens. The successes or failures of those policies guide policy choices in other states. Federal intrusion only serves to undercut the process.
For example, in 2008 the Colorado legislature chose to include sexual orientation under its public accommodations law. Ten years later, that law is the basis for the Masterpiece Cakeshop case recently argued before the Supreme Court. To the surprise of some, Colorado’s Republican attorney general, Cynthia Coffman, chose to defend the law. But her office’s brief made clear the 10th Amendment rationale for protecting Colorado’s interest in self-governance. Coffman was merely doing the job she had sworn to do — defending our state’s right to determine its own laws.
Similarly, Gardner has bristled at Sessions’ decision to ignore the will of Colorado’s people. Whether Gardner supports legal marijuana or not is beside the point. It is clear he sees something far more important at stake, far longer-lasting and ingrained in our system of government. Gardner sees Sessions’ decision as a threat to our state, our country, and the very system of government adopted by our Founding Fathers. He is willing to not only make impassioned speeches, but take direct action against Sessions’ Department of Justice by blocking future appointments. For the mild-mannered senator, such red-faced anger is exceedingly rare.
While Gardner’s resolute 10th Amendment stand may only be a blip in its history, it is a good reminder to Coloradans of the importance of states’ rights protections. Hopefully Sessions will back down and let Colorado continue its own experiment. If not, he may be in need of a refresher course in civics.
Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @MarioNicolaiEsq