Sturm College of Law
Ballot initiative, Preemption, Medical marijuana
As with the political reform initiatives, this second type of ballot initiative represents a category for which the initiative process is especially appropriate: issues requiring experimentation in the area of health, traditionally a topic of strong concern at the state level. Furthermore, this category of initiative does not suffer from the ills that detractors note in other contexts. These initiatives expand personal rights and do not infringe on others' rights, and they address elemental issues, so citizens can be sufficiently informed to cast votes representing their convictions. These types of initiatives, however, confront a significant problem. They frequently involve areas of law already subject to preexisting federal regulation. Under the Supremacy Clause of the U.S. Constitution, federal law preempts conflicting state laws." To the extent these ballot initiatives conflict with federal legislation, they are preempted, and the social experiment comes to an end.
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K.K. DuVivier, State Ballot Initiatives in the Federal Preemption Equation: A Medical Marijuana Case Study, 40 Wake Forest L. Rev. 221 (2005).