Thom v. Barnett

March 10, 2021 • Legal Briefs
By Daniel Abrahamson, Ilya Shapiro, Trevor Burrus, & Stacy Hanson

In November 2020, 54 percent of South Dakotans approved Amendment A, legalizing the adult use of marijuana. Opposing the outcome of the amendment, state officials initiated a lawsuit arguing that Amendment A violates the South Dakota Constitution’s single‐​subject rule, which restricts amendments to being about only a single subject. A South Dakota circuit judge agreed, striking down the amendment. Now before the South Dakota Supreme Court, supporters of the amendment are seeking to protect the will of the voters.

Over the past half century, states have increasingly rejected federal marijuana policies, recognizing marijuana’s medicinal benefits and the disastrous consequences of criminalizing a plant‐​based substance with no known potential for fatal overdose. And while marijuana legalization may be new territory for South Dakota, the state would not be navigating the transition blindly. Since 1996, states across the country have advanced marijuana reforms nearly every year providing an abundance of examples on how to successfully implement legalization.

An overwhelming majority of states that changed their state laws to legalize the adult use of cannabis even did so, like South Dakota, through a citizen‐​led ballot initiative process whereby the state electorate directly chose to enact these reforms. It is this kind of policy experimentation that the Tenth Amendment stands to protect, especially in the face of federal opposition.

When South Dakotans went to the polls, they had long been exposed to the fiscal, policy and human costs of South Dakota’s marijuana enforcement practices. They voiced their strong support for Amendment A and, as is their legal right, chose to amend their state’s constitution to fully effectuate their will.

Now before the South Dakota Supreme Court, Cato has joined with the DKT Liberty Project, Due Process Institute, and Reason Foundation to file a brief urging the court to reject the challenge to Amendment A and to honor the will of South Dakota’s voters. South Dakota, like all states, is free to experiment with marijuana laws that do not mirror federal law. It has worked elsewhere, and it can work in South Dakota.

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About the Authors
Daniel Abrahamson
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.