53 U. Louisville L. Rev. 271 (2015)
Sex, Drugs, and Due Process: Justice Kennedy’s New Federalism as a Framework for Marijuana Liberalization
This Article argues that Justice Kennedy’s due process federalism in United States v. Windsor applies with equal force to Congress’ intrusion on state marijuana regulation. Part II traces the development of state and federal laws regulating marijuana, focusing on how these laws developed alongside Congress’ power to enact a federal prohibition under the Commerce Clause. Part III discusses a potential substantive due process “right to medical marijuana”—a right hitherto unrecognized by any court. Part IV explores the Court’s decision in Windsor and, using Justice Kennedy’s new federalism as a framework, argues that federal marijuana prohibition is also invalid under the Fifth Amendment’s Due Process Clause. The Article concludes that even if the Court never recognizes a substantive “right to medical marijuana,” invoking Windsor can remove “a significant impediment to that broader liberalization process,” thus using federalism to “profoundly enhance liberty” for medical marijuana users.