There was a four-year stretch in the 1980s when one state after another raised the drinking age to 21, a trend that was prompted by the 1984 National Minimum Drinking Age Act.
The law was a powerful and straightforward illustration of the federal government’s ability to influence action at the state-level. States would be required to raise the drinking age to 21, the measure said, or lose 10% of federal highway funds, an act of legislative coercion that forced the entire country to fall in line by 1988.
But South Dakota did not accept the law so willingly, challenging its constitutionality in a case, South Dakota v. Dole, that eventually made it to the Supreme Court. The court upheld the bill, effectively forcing the state’s hand. South Dakota complied, becoming the 49th state to raise the drinking age to 21 (Wyoming has the distinction of being the last state).
There is a similar air of inevitability on the subject of recreational marijuana prohibition, which has been abolished by a dozens of states and cities since 2012. Whereas Congress and the executive branch flexed their dominion over states in upping the drinking age more than 30 years ago, the feds have essentially allowed states control over their marijuana laws through relative passivity.
The question doesn’t seem to be if pot will ultimately be legalized nationwide, but when.
Pursue the hypothetical a bit further, and the question might well become where – as in where will be the last place to embrace legalization. Consider this a vote for South Dakota, where the latest legislative session was headlined, unexpectedly, by a debate over whether to legalize industrial hemp. The bill, which had bipartisan support, was ultimately stymied by the state’s newly elected Republican governor, Kristi Noem, whose opposition centered around one argument: legalized hemp, she argued, was a gateway to legalized pot.
Noem’s bout of Reefer Madness bewildered farmers and advocates within her own party. Jordan Youngberg, a Republican state senator, was frustrated with the Noem administration’s objections, saying the reasons offered were “getting a little old.” And in February, the editorial board of Agweek called on Noem to back the bill, saying she had “taken a public position that clearly works against South Dakota agriculture.”
“It’s widely understood in ag circles that industrial hemp, which is very different from marijuana, is well suited for marginal land,” the editorial said. “It’s widely understood in ag circles that industrial hemp potentially could generate profits for the hard-pressed South Dakota ag operators farming that land.” Youngberg and other supporters of the bill also argued that it would be a boon for the agricultural community, by far the state’s largest industry. “This is for our farmer,” Youngberg told the Argus Leader, “for our state.”
Other ag-centric states have recognized the benefits of hemp, including neighboring North Dakota and Minnesota, which both passed measures to legalize its cultivation. Support for industrial hemp, much like support for legalized marijuana, has grown exponentially this century. That upward trend can be attributed to an effective campaign to remove the stigma associated with hemp, which contains miniscule levels of THC.
But unlike pot – which has still, predominantly, been legalized in historically liberal states and municipalities — the industrial hemp movement has transcended partisanship. Among the more than 40 states that have legalized hemp production, nearly half are traditional Republican strongholds.
To the west of South Dakota, crimson red Wyoming passed its own bill to legalize hemp this year before it was signed into law by the state’s Republican governor, Mark Gordon. As the state’s legislature plowed ahead with the measure, a Republican lawmaker in Wyoming taunted Noem for her reluctance, telling a reporter that he hopes “she vetoes it, because that would be good for Wyoming.”
Legislators in Wyoming and South Dakota were emboldened to take action this year after Congress removed the biggest remaining obstacle by making hemp federally legal with the passage of the 2018 Farm Bill in December. The bill’s passage made Noem’s opposition to the South Dakota legislation all the more confounding to advocates – not just because the federal government had given states the green light to enter the hemp market, but because Noem, then wrapping up her fourth and final term in Congress before heading to the governor’s mansion, had voted for that Farm Bill. “It doesn’t make sense,” said South Dakota Farmers Union president Doug Sombke.
In the end, neither economic incentives nor the risk of perceived hypocrisy were enough to overcome Noem’s reservations. When the hemp bill landed on her desk in March, after winning overwhelming support in South Dakota’s GOP-controlled legislature, Noem vetoed it. “There is no question in my mind that normalizing hemp, like legalizing medical marijuana, is part of a larger strategy to undermine enforcement of the drug laws and make legalized marijuana inevitable,” she said in a statement following her veto.
That Noem invoked the seeming inevitability of marijuana legalization was telling, an assertion that the state stands athwart a nationwide movement to destigmatize and decriminalize the drug. South Dakota has long displayed a deep hostility toward pot use; the Marijuana Policy Project has said that the state’s possession laws might be the harshest in the country. Even having a small amount of marijuana on you can get you a year in jail. Voters there have rejected ballot initiatives twice since 2006 to legalize medical marijuana, including by a whopping 63-36 percent margin in 2010. A study released last year found that South Dakota had the third highest marijuana arrest rate in the country. While attitudes toward marijuana have softened virtually all over the country, South Dakota is poised to be one of the last remaining holdouts, inhospitable to all varieties of cannabis.
Noem’s rhetoric toward industrialized hemp demonstrates that she intends to keep it that way, providing another reminder that even when the federal government compels droves of states to move one way, there will invariably be an intransigent few that hold firm. In South Dakota’s case, it’s a matter of history repeating itself.
