It is often said that the United States is a democracy. That is not really true. Our country is a representative republic. There is a substantial difference between the two. Nothing shows the differences as dramatically as the debate over cannabis legality.
For example, South Dakota voters approved a ballot proposition in 2020 legalizing recreational cannabis in that state. In early 2021, Governor Kristi Noem announced litigation she hoped would strike down Amendment A as unconstitutional. She got what she wanted. The state Supreme Court agreed with a lower court that the amendment was, indeed, unconstitutional.
The National Organization for the Reform of Marijuana Laws (NORML) came out against both the governor and the court’s decision. They accused both of circumventing the will of the people. That may be the case, but they did what they promised to do in swearing the oath of office.
- Democracy vs. Republic
Before getting into the South Dakota case, it is important to define both a democracy and a republic. In a true democracy, the majority rules. It only takes 51% of the population to rule over the remaining 49%. That means that in a population that is pretty evenly divided, just 2% on one side or the other makes the difference.
In a republic, a simple majority doesn’t rule. Instead, citizens elect representatives to work on their behalf. Representatives craft and pass legislation. Representatives establish regulatory agencies and seat judges. The republic system makes it much more difficult for 51% to control 49%. With that understood, the South Dakota decision makes a lot more sense.
- Unconstitutional on Its Face
South Dakota’s administration petitioned the court system after determining that Amendment A was unconstitutional on its face. What was the problem? South Dakota law requires that all amendments to the state constitution be single-topic propositions when presented to the voters. Apparently, Amendment A did not meet that requirement.
The fact that the state Supreme Court agreed with a lower court’s ruling by a four-to-one vote makes it pretty clear that Amendment A was not written properly. As a side note, state legislators are already working on a bill to legalize recreational marijuana in 2022. A new amendment drive has also been launched.
What has this to do with the idea of democracy vs. a representative republic? Amendment A passed 54% to 46%. That may represent eight percentage points in terms of the spread, but 54% by no means establishes a mandate. South Dakota remains largely split over whether recreational cannabis should be allowed.
The state Supreme Court and South Dakota’s governor did not allow a simple majority to overturn existing law. Nor should they have. All five judges and the governor took an oath of office in which they swore to protect the Constitution. The state constitution clearly does not allow multi-topic amendments. To let Amendment A go through without opposition would have been giving in to mob rule.
- Voters Can Still Vote
South Dakota is one of many states that do not have a problem with medical cannabis despite opposition to recreational use. Utah is another state. There, patients can walk into Salt Lake City’s Beehive Farmacy and purchase medical cannabis with a valid state-issued card. They cannot legally purchase recreational marijuana anywhere in the state.
If Utah voters want to approve recreational cannabis, they have to do so according to the law, just like South Dakota voters. And if their ballot proposition violates the law, it is the responsibility of the governor and the court system to step in. That is how things work in a representative republic.