Joe Perez

iTrader: (8)

I usually steer clear of ConLaw issues. Or even politics in general. But every now and then, something strikes me as just so damn funny that I actually feel a little sad for mankind.

I happened to read an article today in the Times which contained a few quotes that really sort of interested me. The article is here: http://www.nytimes.com/2010/10/16/us/16pot.html?_r=1&hp

Essentially, they are talking about California's Proposition 19, the "Regulate, Control and Tax Cannabis Act of 2010" which, if ratified, will make it legal in California for anyone over 21 to grow, possess, and consume marijuana, as well as making the retail sale of marijuana legal, both within certain rather generous boundaries. For all intents and purposes, it makes the recreational use of pot almost entirely legal. (At present, possession of one ounce or less is not a criminal offense, it is merely punishable by a $100 fine. So basically, less severe than a speeding ticket.)


The article centers largely around a recent announcement by Eric H. Holder Jr., the attorney general of the United States. In part, the article states that while "Washington has generally looked the other way as a growing medical marijuana industry has prospered here [California] (...) Mr. Holder’s position — revealed in a letter this week to nine former chiefs of the Drug Enforcement Administration that was made public on Friday — made explicit that legalizing marijuana for recreational use would bring a whole new level of scrutiny from Washington."

But Mr. Holder isn't the problem.

No, that would be one Mr. Robert Bonner, former head of the Drug Enforcement Administration, who stated that "Proposition 19, if it passes, is going to be unconstitutional and void. It's a direct conflict with federal law."

Que?

The Constitution is something that I don't think most Americans understand. For starters, it's not a very big document. The whole thing is four handwritten pages, including the signatures. Add one additional page to cover the entire Bill of Rights (the first 10 amendments, which are in modern times considered essentially to be a part of the main document) and you've got something quite a great deal shorter than the EULA for the driver that came with your printer.

Really, apart from the S's that look a bit like elongated lower-case F's, it's a pretty easy document to digest.

So, what exactly does the constitution have to say on the subject? This:


Hmm. It kind of seems to me that Prop 19 is saying "Dear Federal government, given that the Constitution does not grant you the authority to regulate the use of marijuana, and therefore reserves that authority to us, we wish to make our own laws concerning the aforementioned, and enforce them absent any interference from you. Cordially yours, California."

dstn2bdoa

iTrader: (18)

Seems to be the case, but like you, I am no law expert. I would even go as far as saying that I'm really bored by most of it.

But what I a can tell you, is that in my occupation I meet people when they are at their worse. In my 10+ years of experience, the ratio of pot smokers causing problems (any sort, from DUI to murder) vs people intoxicated from alcohol, is about 1:3000.

Of course this is only anecdotal, but I have never seen any real downside to the legal use of pot. The stereotypical "pot head" could easily be transfered over to a chronic alcoholic. Of course long term/heavy abuse will have consequences, just as long term/heavy abuse of food, will have it's consequences.

From my side of the street, if Vodka is legal, than pot should be too.

BTW I'm not a user. Just an observer.

thirdgen

iTrader: (26)

Guns don't kill people, people kill people. If alcohol is legal, why can't marijuana be legal? The statistics on marijuana are lower than alcohol, cause smoking pot makes you just sit around and play video games. If you're at a bar drinking, and some dude comes up with an attitude, you wanna punch his face in. If marijuana will be legalized, what about cocaine and heroin? It's a where do you drawl the line kinda question.

dstn2bdoa

iTrader: (18)

Exactly, why was the line drawn here in the first place? I would think that anyone that has seen the effects of common drugs, ie. heroin, meth, crack cocaine etc. would agree that marijuana is a much more amiable substance.

To quote the former Surgeon General Joycelyn Elders.“I think we consume far more dangerous drugs that are legal: cigarette smoking, nicotine and alcohol, I feel they cause much more devastating effects physically. We need to lift the prohibition on marijuana.”

Millions of people are smoking it anyway, some might be better off smoking pot rather than drinking, or taking prescription narcotics. Why not give the profits to legit business and the state through taxes, and give the Mexican Mafia something else to make billions off of.

Like I said, I'm not a user, and more than likely wouldn't be if it was legalized. Just observing and reporting (my opinions).

gospeed81

iTrader: (51)

Ah...our very own legalization thread.

In reality we should keep this a state's rights thread, as I interpret Joe's post as an outline of this case, and not the actual issue at hand. I think most of us can agree with the views the people of California are about to express with their vote. And if you're smart, you can associate the violence just south of us with our prohibition. Remember our first Prohibition? Yeah, that went well...



Anyhow, on to state's rights.

This is EXACTLY what the constitution states...that California IS free to pass it's own laws where there is no authority to do so granted to the Federal government.

Now there is a federal law on the books, the Controlled Substances Act, and California will be taking them head on with this. Under this act marijuana is a Schedule 1 drug, and of course subject to regulation. Most folks waste their time arguing whether the drug should be on that list, when the real question is:

Should there be a controlled substances list at all?


This is the basenote of the OP. The CSA not only combined drug use laws, but greatly expanded federal policing power. Where this becomes an issue is in the criminalization of private behavior. Here the Federal government has stepped in and dictated (with mandatory minimum sentences), what is acceptable personal behavior without the requirement that all protective laws must have that the rights of another are being violated.

Our government should serve to protect us...not from ourselves, but from foreign invaders, and our fellow citizens which infringe on our rights.

This is simply another example of centralization of power...which the Constitution explicitly strives to prevent.

Whether you believe it should be legal or not is your decision, and you should be afforded the right to vote on it in your state, as well as being able to move if the majority in your state votes against you.

fooger03

iTrader: (2)

Just as long as the transportation to, and sale of marijuana in states where it is illegal from states where it is legal (crossing the California border with it to sell, use, or "oops i forgot it was in my trunk on the way to vegas) remains a federal crime, punishable to all those that knowingly grew/transported/sold with intent to cross the border, I'll be fine with it. Arizona, Nevada, and Oregon (and other states beyond their borders) will need to be able to enforce their own laws - all the way to the grower, if necessary, without the additional burden that is going to be created by having a rogue state (in relative terms) beside them. The federal government therefore needs to be able to enforce federal laws in order to track, find, and bring justice to those tied to border-crossing marijuana. The extra law enforcement is going to have to be paid for by someone, and we all know that broke-*** california wont be footing the bill.

thasac

iTrader: (3)

Agreed. When I hear people spout their paranoias of marijuana use I laugh knowing the number of driven and respected citizens who dabble in it's uses - CEO's, heads of marketing, MBA's, PHD's, Deans, Professors ... you name it.

A pot head is merely unmotivated. An alcoholic is a cyst.

-Zach

hustler

iTrader: (6)

Prop 19 is unconstitutional only because the DEA/federal government want a slice of that revenue. The authoritarian Marxists want to pull the nation out of this Great Recession with one of their failed stimulus products; the last thing they want is state fortuity.

Joe Perez

iTrader: (8)

GoSpeed is wise.

Yes, the deeper reality, which that little part of me that thinks like JasonC can't quite get around, is that Prop 19 and its repercussions aren't really about marijuana at all; they are about a re-examination of the fundamental conflict between the sovereignty of the States to enact and enforce regulations which pertain to internal affairs (the Reserved Powers) vs. the Enumerated Powers of the Federal government.

And specifically, how these relationships are being outright distorted by members of the Federal goverment and its agencies in what can only reasonably be interpreted as a power grab. It's very easy to say "such and such is unconstitutional, because it is in conflict with Federal law," and be believed. But the reality of the matter is that in many such cases, it is the very existence of said Federal law in the first place which is unconstitutional!



We've already established what the States' rights are: pretty much everything not forbidden them by the Constitution nor expressly granted to the Fed by same. And the right of the States to regulate marijuana within their borders is certainly not expressly forbidden. So, what are the rights granted to the Fed? They're pretty easy to find, actually, as they are all laid out, one by one, in article 1, section 8. Here's a complete listing: http://www.usconstitution.net/const.html#A1Sec8

Now, most of those have to do with the monetary system, war, the armed forces, intellectual property, the postal service, etc. But we'll look at the few that do occasionally get called into question when debating matters such as this.


First, the Commerce Clause:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

Hmm. I don't think that California is proposing in any way to regulate the sale of pot across state lines or with Mexico. There are a lot of Indian tribes around here, so I guess in theory the Fed could step in if somebody were trying to sell pot to someone who claims affiliation with a recognized tribe, or if the Indians themselves decided to go into business selling pot to Californians. I haven't heard any of the Fed types making reference to the Bureau of Indian Affairs, however, and I'm pretty sure that they'd need to go through that agency, and not the DEA, if they wanted to invoke the Commerce Clause in this context.


So then we've got the Necessary and Proper Clause. This is the last one, and it actually gets called on a lot, but what does it actually say?

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Huh? That doesn't really say anything. It basically just says "You know all those powers that we've listed in the previous several paragraphs? You can go ahead and make laws to enforce them."

Well that's bunk! Go and read that link I posted a little bit ago. It's short, I swear.


About the only thing in the whole constitution that could even come close to applying here is the very first clause in the Enumerated Powers, the Taxing and Spending Clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Well, now we're getting somewhere. The Fed taxes us all the time. In addition to the most obvious taxes (income tax, social security tax, medicare tax, etc), there are a huge variety of what are known as Excise Taxes. We pay excise taxes on cars, gasoline, liquor, coal, tires, firearms, cigarettes, telephone service, airline tickets, etc.


(Amusing sidebar: you remember the tax which resulted in a great deal of tea being thrown into the Boston Harbor in 1773, and also sort of indirectly lead to the American Revolution and the formation of the United States? That was an excise tax.)

(Less amusing sidebar: technically, income taxes are also a form of excise tax, however they are commonly excluded from discussions such as this, which center on the taxation of consumption rather than generation.)


So, hey! It turns out that the one clause in the entire Constitution which might in any way reasonably be interpreted to apply to good ole' Mary Jane is one which would allow the Federal government to realize a not insignificant amount of income from it! (Not as though the Fed needs money right now or anything.)



Now, Mr. Boner and Mr. Holder, what exactly was the problem again?






.

fooger03

iTrader: (2)

Is it not a little ridiculous to think that cost of enforcing marijuana prohibition doesn't far exceed any potential public income associated with it?

94mx5red

iTrader: (14)

The feds nut themselves every time they successfully use the commerce clause. If Prop 19 passes, , this is my guess as to how they are going to try to kill it. I hope it to be an epic showdown.


This case gives a pretty good summary of the extent of the Commerce Clause, and deals with both California and cannabis:

Gonzales v. Raich Supreme Court of the United States June 6, 2005 545 U.S. 1125 S.Ct. 2195

(sorry for the poor layout, but I had to find a link that you guys could access, and I could not find it easily on the USSC website http://www.supremecourt.gov/opinions/opinions.aspx)

Joe Perez

iTrader: (8)

Gonzales v. Raich was a stupid decision.

Trying to apply Wickard v. Filburn as prima facie evidence that the Fed may indiscriminately regulate local or intra-state commerce just doesn't fly. The issue at stake in Wickard revolved around a production quota on wheat that had been established during the Great Depression, specifically the Agricultural Adjustment Act of 1938 (itself a revision of the Agricultural Adjustment Act of 1933) intended to raise the market prices of certain agricultural products by artificially depressing supply. This was implemented by establishing an upper cap on the production of these products, allotted on a per-acre basis.

Now, from a practical standpoint, the accused (Roscoe Filburn) was a farmer raising wheat to feed his chickens. So you might tend to be sympathetic towards him, since he wasn't planning to sell any of the wheat that he raised. And the Great Depression itself was a memory in 1941 when the wheat in question was planted.

But there's a hidden economic argument here- by raising his own wheat, Filburn did not have to purchase any grain from other sources in order to feed his chickens with, and as a result, the combined national supply of wheat was increased by 239 bushels (having a total value of $160.13) with the result that the national economy was depressed by that amount.


Ok, it's a stretch.


But here's where it falls apart: recreational marijuana is not a recognized agricultural product. There is no federally established price for it, no quotas levied upon its production, it does not trade on any commodities market, you cannot invest in pot futures, etc. It is the demonstrated position of the Fed that, from an economic standpoint, marijuana does not exist.



I think I'd prefer to cite United States v. Lopez 514 U.S. 549 (1995), in which the Supreme Court stated that "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action.(...) The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further," further noting that "if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."


A similar decision was made in United States v. Morrison 529 U.S. 598 (2000), where the Court held that while "Congress may regulate intrastate non-economic activity under the Commerce Clause if that activity has a substantial effect on interstate commerce," it limited the scope of the Commerce Clause to exclude activity that was not directly economic in nature, even if there were indirect economic consequences.


In other words, the tide is turning against broad and limitless application of the Commerce Clause.

JasonC SBB

Late to the party .... good points by many.

I've said that the most important thing about Prop 19 is so that people of CA will realize how far the Fed Gov has overstepped its boundaries. It can be the first step towards de-centralization of power from DC. I'm very hopeful.

States' Rights FTW:
http://www.tenthamendmentcenter.com/

Thomas Jefferson has considered the 10th Amendment and States' Rights as the most important check against tyranny. The States should have the final say as to whether or not a new Federal law is unconstitutional or not, by using the power of NULLIFICATION - i.e. to declare that a Federal law is null and void within a State's borders. No, the Supreme Court is not the final arbiter, as the SC can be just another tentacle of the tyrannical Federal monster. If an unpopular Federal law is passed, e.g. sending the National Guard to Iraq, or PelosiCare, the States need not wait for the SC to undo the law; they can invoke nullification.

Both "cons" and "libs" should support the concept of States' Rights, as de-centralization of power is the best check against tyranny. The voters have more control over local gov't than they do over DC.

http://www.tenthamendmentcenter.com/...-nobody-knows/

Remember that nullification was considered by the founders as a more amicable option to secession. And that the Fed Gov was created by the States not to cede power to it, but only to smooth affairs between the States, and to take over tasks that are more efficiently handled by a central authority, such as maintaining a military to protect from invaders, and to prevent trade wars between States (the original intent of the commerce clause)

Braineack

iTrader: (62)

IE, YOU GOT FUCKED.

Joe Perez

iTrader: (8)

Huh?

Braineack

iTrader: (62)

The the cause in the tenth amendment that the gov't uses to **** your ****.

Reverant

iTrader: (10)

Do you smoke pot or something? Maybe moved to CA recently?

miatauser884

iTrader: (11)

I think it should be legalized, growing it should be illegal accept for state regulated/licensed growing institutions, and it should be heavily taxed.

I don't smoke pot

Of course, I also think there should be a higher tax on alcohol, and we should tax things like non-diet soda.

sjmarcy

Those who toke tend to lose ambition…check back in five years and see…however, they may not know or care...

Joe Perez

iTrader: (8)

You were high when you wrote that, weren't you?