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Susan Shelley: Federal government wrong in its marijuana crackdown
By Susan Shelley
Posted: 10/19/2011 01:00:00 AM PDT
U.S. prosecutors are presently informing marijuana dispensaries in California that they have 45 days to cease operations or face criminal charges and confiscation of their property.
The dispensaries are operating legally under state law, but according to a letter sent to at least a dozen marijuana dispensaries in San Diego and obtained by the Associated Press, federal law "takes precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana."
There's only one problem with this assertion. The U.S. Constitution doesn't give the federal government any authority whatsoever to ban marijuana that's grown, sold and used within the state of California.
True, there's a clause in the Constitution that gives federal laws supremacy over state laws, but there's a big qualifier in it: only laws made "in pursuance" (following or carrying out) of the Constitution take precedence over state laws. A federal law that is not made "in pursuance" of the Constitution is unconstitutional.
The supremacy clause, which can be found in Article VI, states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
There's no use arguing that the supremacy clause gives the federal government unlimited power.
The entire Constitution prohibits the federal government from exercising unlimited power. "Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?" a frustrated James Madison asked in Federalist No. 41. This is not a new problem.
Many people who read the proposed Constitution in 1787 were concerned that it didn't do enough to restrain the power of the federal government. That's why the First Congress adopted 10 amendments before the chairs were warm.
The Bill of Rights is a long list of things the federal government is specifically not allowed to do, plus the Ninth Amendment to make it clear that there were lots of other things the federal government wasn't allowed to do, plus the Tenth Amendment to make it absolutely clear that any power not delegated to the federal government by the Constitution was a power that belonged to the states or to the people. It couldn't have been more "clear and precise."
So if you're one of the millions of Californians who are doing a slow burn today because the Obama administration's Justice Department is shutting down pot dispensaries that are operating lawfully in California, here's some free advice: Count to 10, slowly. Then, read the Tenth Amendment.
Wouldn't it be ironic if the Progressive movement toward greater and greater national control of every part of life was completely undone by a national uprising of states' rights fervor over marijuana laws? James Madison would be proud to know that generations of college students were studying the principles of federalism at every Grateful Dead concert they ever attended.
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Susan Shelley of Woodland Hills is running for Congress in California's 30th District. She's the author of the novel, "The 37th Amendment" and of a history of the Bill of Rights "How the First Amendment Came to Protect Topless Dancing."
By Susan Shelley
Posted: 10/19/2011 01:00:00 AM PDT
U.S. prosecutors are presently informing marijuana dispensaries in California that they have 45 days to cease operations or face criminal charges and confiscation of their property.
The dispensaries are operating legally under state law, but according to a letter sent to at least a dozen marijuana dispensaries in San Diego and obtained by the Associated Press, federal law "takes precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana."
There's only one problem with this assertion. The U.S. Constitution doesn't give the federal government any authority whatsoever to ban marijuana that's grown, sold and used within the state of California.
True, there's a clause in the Constitution that gives federal laws supremacy over state laws, but there's a big qualifier in it: only laws made "in pursuance" (following or carrying out) of the Constitution take precedence over state laws. A federal law that is not made "in pursuance" of the Constitution is unconstitutional.
The supremacy clause, which can be found in Article VI, states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
There's no use arguing that the supremacy clause gives the federal government unlimited power.
The entire Constitution prohibits the federal government from exercising unlimited power. "Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?" a frustrated James Madison asked in Federalist No. 41. This is not a new problem.
Many people who read the proposed Constitution in 1787 were concerned that it didn't do enough to restrain the power of the federal government. That's why the First Congress adopted 10 amendments before the chairs were warm.
The Bill of Rights is a long list of things the federal government is specifically not allowed to do, plus the Ninth Amendment to make it clear that there were lots of other things the federal government wasn't allowed to do, plus the Tenth Amendment to make it absolutely clear that any power not delegated to the federal government by the Constitution was a power that belonged to the states or to the people. It couldn't have been more "clear and precise."
So if you're one of the millions of Californians who are doing a slow burn today because the Obama administration's Justice Department is shutting down pot dispensaries that are operating lawfully in California, here's some free advice: Count to 10, slowly. Then, read the Tenth Amendment.
Wouldn't it be ironic if the Progressive movement toward greater and greater national control of every part of life was completely undone by a national uprising of states' rights fervor over marijuana laws? James Madison would be proud to know that generations of college students were studying the principles of federalism at every Grateful Dead concert they ever attended.
--------------------------------------------------------------------------------
Susan Shelley of Woodland Hills is running for Congress in California's 30th District. She's the author of the novel, "The 37th Amendment" and of a history of the Bill of Rights "How the First Amendment Came to Protect Topless Dancing."
