Morris: A Government Upside Down

December 3, 2018

by Leo Morris

I was intrigued by a recent CNHI News story to the effect that Michigan’s legalization of marijuana for recreational use could create headaches for police in northern Indiana.

For one thing, they have to be on the lookout for those legally using weed in Michigan who might be a little lax about wandering across the state line into a jurisdiction where their indulgence is still illegal. For another, officials “expect the new law to lower stigmas on marijuana use in Indiana, which could attract more first-time users to try the substance.”

And pity the poor users, nearby and elsewhere, as more and more states decide to ignore the federal ban on the drug that’s still in place. They must always be aware of where they are and what the local laws say about the matter.

But, as my Texas brother would likely say, “Welcome to my world.” He and other gun-rights advocates have always had to stay cognizant of state jurisdictions. Can they keep the gun in the glove compartment when they cross this or that line?

Can they still legally carry in this or that state, and does it matter whether it’s open or concealed? My brother, on long car trips, has a cheat sheet he refers to in order to make sure he’s always locally legal.

It’s a tricky business, this matter of state versus federal jurisdiction, and getting trickier.

Ratification of the Constitution almost collapsed until the Founders addressed the fear of federal power by tacking on a Bill of Rights comprising the first 10 amendments. (That’s kind of a misnomer, by the way. None of the 10 actually amend the Constitution; rather, they clarify and make more specific some of its provisions.)

But with passage of the 14th Amendment in the wake of the Civil War, the Bill of Rights has been turned on its head. Instead of being, as intended, a curb on federal authority, it is now mostly a tool used by federal authorities to keep state governments in line.

And there’s a certain logic to that development. If a right such as that of religion or speech is fundamental or God-given or natural – however we chose to define its inviolability – then it must be respected by all levels of government. Our rights cannot be allowed to be eroded just because we cross a state line.

But power tends to accumulate and concentrate, so Washington has taken control over nearly all aspects of American life, the trivial as well as the fundamental. By what lunatic definition of federalism does Washington presume to tell us what to include on school lunch menus and who may use which bathroom?

We cannot be guided out of our jurisdictional confusion by those who sometimes call for a return to states’ rights, since they often act out of political expediency rather than bedrock philosophy. Many conservatives who argued that abortion should remain a state issue are not thrilled with states pushing for marijuana legalization. Many liberals who cheered the nationalization of gay marriage tremble at the idea that the Supreme Court might nationalize a right to concealed carry.

And we should be just a little leery of periodic enthusiasm for the 10th Amendment and its call for only limited, delegated powers going to the central government. Not because it misses the point, but because it leaves one out. The idea is not to merely take power away from Washington and return it to local jurisdiction. The point should be to achieve the balance of power that best protects the rights of citizens as individuals.

That’s why I’m a fan of the 9th Amendment and its reminder that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Don’t just keep telling me which jurisdiction has what power over me. Listen to me about the things that are not the business of any of you.

December is the anniversary month of the Bill of Rights (the 227th, if you’re keeping track). Although the application of the amendments may have changed and the confusion over their meaning may be widespread, they remain an important reminder to Americans that they have rights that must not be violated. Just as important, they remind government officials, who are prone to forget it or ignore it, that we have those rights.

Rights inhere in the individual. It’s the single greatest political idea in the history of the world. And this country was founded on that idea. We must never forget that. Ever.

Leo Morris, columnist for The Indiana Policy Review, is this year’s winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at


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