by Derek Sheriff
On Friday night the Marijuana Policy Project reported:
“Although there are still about 10,000 votes left to be counted, our lead of more than 4,000 votes makes us 100 percent confident in announcing…
Arizona is now the 15th medical marijuana state!
This fall, more than 1.7 million Arizona voters mailed in ballots and turned out to support Proposition 203, a ballot initiative that would end the arrest and imprisonment of patients for following their doctor’s advice. While it seemed as if the initiative had fallen short on election night, it garnered enough support from late mail-in votes and provisional ballots to produce a victory!”
Medical marijuana is controversial, no doubt, especially among social conservatives, of which I am one. But regardless of whether or not one supports the legalization of medical marijuana in one’s own state, or whatever a person’s opinion of its efficacy as a medicine might be, one thing should be uncontroversial:
The Tenth Amendment prohibits the federal government from interfering with a state’s decision to either allow or prohibit the cultivation, distribution or use of marijuana within its own boundaries (case law involving the Commerce Clause notwithstanding). Under the Constitution, that decision is reserved to the states or the people. The regulation of intrastate commerce, as it pertains to marijuana, is simply outside the scope of federal power. The fact that our overlords in Washington, DC and their minions throughout the union have ignored the Tenth Amendment for decades, is irrelevant.
But medical marijuana isn’t the only issue over which the people of Arizona have invoked their sovereign powers, guaranteed by the Tenth Amendment. They also passed Prop. 106 in order to amended the Arizona State Constitution, which according to Dr. Eric Novack, Chairman of Arizonans for Health Care Freedom, will do two things:
– One, Prop 106 guarantees that all Arizonans have the right NOT to participate in any health care system or plan without facing a penalty, fine, or tax. Put simply, that means no government-mandated insurance.
– Two, Prop 106 will guarantee that all Arizonans have the right to spend their own money to obtain legal health care services. Second opinions; additional medical treatments; life-saving legal drugs [which now includes marijuana for those whose physician prescribes it]: No government bureaucrat should ever be able to tell you that your life and health are not worth it
Kyrsten Sinema, Assistant House Democratic Leader, sees it differently. In fact she asserted earlier this year that Prop. 106 is actually useless. She wrote:
“Prop. 106 is completely useless because the Supremacy Clause of the U.S. Constitution establishes that laws established by Congress are the supreme law of the land. Through Proposition 106, the state may not tell the federal government what to do.”
Yes, you read that correctly. According to Kyrsten Sinema, federal statutes, not the US Constitution, are the supreme law of the land.
Getting the Supremacy Clause Wrong
As predictable as the sun rising tomorrow in the East, are the arguments that the federal supremacists, opposed to not only Prop. 106, but also those opposed to Prop. 203, will make. At their core, they are essentially identical. They mistakenly assert that federal statutes, rather than the Constitution, are the supreme law of the land. Recall what Kyrsten Sinema wrote:
“..the state may not tell the federal government what to do.”
Prepare yourself for the heavy dose of propaganda you’re about to be subjected to. “States can’t just pick and choose what federal laws they will obey!” and, “federal law trumps state law”, are the sound bites that will be presented to us in a “matter of fact” tone,  over and over again. Someone once said that, “A lie told often enough becomes the truth”. I won’t name names, but the name of the person who said it rhymes with Lenin. And just like Kyrsten Sinema’s argument against Prop. 106, the “federal marijuana laws haven’t been repealed” arguments that will be made against Prop. 203, are based on the same flawed understanding, or misrepresentation of, the Constitution’s Supremacy Clause.
The Supremacy Clause established the following rule:
“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.”
So what part of the Supremacy Clause don’t they understand? Where do Kyrsten Sinema and other federal supremacists get it wrong? For starters, they seem to ignore or gloss over the fact that the Constitution is mentioned in the clause first. Robert G. Natelson, a nationally recognized expert on the framing and adoption of the Constitution, explains in chapter three of his book, The Original Constitution: What it Actually Said and Meant:
“The Supremacy Clause thereby described a hierarchy by which state (and federal) judges would prioritize federal and state enactments..The most obvious prescription of the Supremacy Clause was that the Constitution and duly-enacted federal laws and treaties were superior to state constitutions and state laws..The US Constitution was mentioned first—before ‘Laws . . . made in Pursuance thereof’—to indicate that the Constitution was superior to statutes..The Supremacy Clause referred to laws ‘in Pursuance’ of the Constitution but to treaties as ‘made, under the Authority of the United States.’..Thus, state and federal courts were to apply sources of law in the following hierarchy:
Highest: The U.S. Constitution
Next highest: U.S. laws and treaties, duly made within the scope of federal power
Next: State constitutions
Lowest: State laws.
Federal actions taken outside the scope of federal power were not, of course, to be law at all.”
So according to Robert Natelson, state and federal courts were to apply sources of law according to the hierarchy listed above. But what happens when federal courts, even the highest federal court in the land fails to do so? Do the states and the People have any further recourse? Yes we do, and the most appropriate one is called state nullification.
“Unconstitutional Law” is an Oxymoron
Federal actions taken outside the scope of federal power are not laws, they are acts of usurpation. In other words, an unconstitutional federal “law” is no law at all, and the states and their people are not bound to obey them. Whether it’s Prop. 106 (The Arizona Health Insurance Reform Amendment), or Prop. 203 (The Arizona Medical Marijuana Initiative), Arizona is acting well within the scope of its reserved powers when it enacts such laws.
Arizona is not somehow being insubordinate, rather it is our so called federal government that is refusing to subordinate its actions to the Constitution, which is the supreme law of the land. By interposing itself between the people of Arizona and a federal government gone rouge, the 48th state is simply performing what most states (both northern and southern), properly understood to be their duty for almost the first half of American history. The examples, which have involved a multiplicity of issues, ranging from the protection of free speech in the 1790′s, to preventing the unconstitutional kidnapping of blacks by slave hunters in the 1850′s, they are too numerous to cover here in detail.  But I’ll give you this important example.
When representatives from Rhode Island, New Hampshire, Vermont and Massachusetts assembled in 1814 at what is known as the Hartford Convention, in response to the federal government’s unconstitutional conscription plan and other grievances they had, they did not ask the federal government for permission to “opt out” of their conscription plan, neither did they attempt to sue the federal government in federal court, as far as I know.  Rather, they drafted a report and resolutions on their own, without asking permission. They understood that the federal government was their agent, not their master. Let me share with you an excerpt from one of those resolutions adopted by the convention. It reads:
“In case of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of a State and the liberties of the people, it is not only the right, but the duty of such State to interpose its authority for protection in the manner best calculated to secure that end.”
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We don’t necessarily need a convention, like the one convened in Hartford back in 1814, to halt federal acts of usurpation. Fourteen states have already asserted their sovereignty unilaterally, by legalizing medical marijuana in spite of the Supreme Court’s ruling that they may not do so. So far, no one has been run over by a tank. In fact, the federal government has done almost nothing to oppose them. Now it looks like Arizona will be number fifteen.
So thanks for your opinion, Supreme Court…but we’ll be “the decider” when it comes to what kind of health care system we’ll have in Arizona, or if a certain plant, grown and kept within our state, is to be permitted for medicinal use. And whatever we do decide, know that more of us everyday are waking up to the fact that it is the duty of those in our state government to protect the sovereignty of Arizona and to support and defend the Constitution of the United States.
EDITOR’S NOTE: As of 11-14-10, Arizona’s elections office has made it official that Proposition 203 has passed.
CLICK HERE – for the Tenth Amendment Center’s legislative tracking page for state marijuana laws
While you are essentially correct, the supreme court has eroded the 10th amendment for decades, so it's a moot point. 203 may survive thanks to the 'recommending isn't prescribing' loophole, but 106 is toast – it'll end up in front of the SCOTUS and be ruled against on supremacy grounds, even if technically the 10th amendment is supposed to override that. It sucks that it's that way, but it's that way.
If 106 does fail it won't be because the court says so, it'll be because Arizona won't stand up and enforce it despite the courts ruling. Hopefully that won't be the case. If the states are determined to exercise their constitutional rights with or without permission, then it won't matter too much what the court says.
The Supreme Court's authority is delegated to it by the people of the several states through the contract we call the Constitution. The Constitution emanates from the sovereign — the people of the several states — and cannot be circumvented or eroded by any branch of the federal government, including the judicial branch. In the case of naked judicial usurpation, it is the duty of state governments to interpose their authority for the protection of their people in the manner best calculated to secure that end, regardless of what the Supreme Court says. And if they fail or shirk their duty, then in the last instance, the people themselves must act as the final arbiter of the Constitution. According to the principle of popular action, the people, properly organized may act on their own. Let's hope it doesn't come to that, but even if it does, I'm optimistic that it could be accomplished through active non-violent resistance.
'We The People' can choose to excercise their duty to resist the usurpations of the Federal Gov't, regardless of which branch or branches are committing the usurpations by excercising their right of jury nullification.
A single juror can halt the Govt's attempt at overreaching by refusing to convict anyone charge with violating the 'law' they are charged with breaking! Since "Federal actions taken outside the scope of federal power are not laws…the states and their people are not bound to obey them", the proper action for jurors to take when the States fail to intercede and the gov't tries to convict someone of violating one of these so-called 'laws' is to find any person accused of violating it "Not guilty"! If the Gov't cannot find a jury willing to convict a 'violator' of the so-called law, the law becomes effectively null, void and unenforcable!
http://www.shadyhousepub.com/mpiu/tenth-amendment…
the 10th amendment is not the answer to marijuana prohibition, especially on the federal level. The Congress was granted the power to regulate commerce. Marijuana is a commercial commodity. It can be regulated by Congress. Not as it is now, but not for the 10th amendment.
Congress was not granted the power to regulate intrastate commerce, or commerce within a state. Article I, Section 8, Clause 3 reads: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;"
Marijuana cultivated, distributed and consumed within a state's legal boundaries does not fall under the scope of federal power under the Commerce Clause.
One last point, the power to punish for violations of any laws that regulate commerce does not exist with the federal government. It only has the power to lay down laws that regulate commerce. Enforcement of these laws through punishment falls to the states themselves. That is my opinion at least.
But they can regulate intrastate activities that affect commerce because it is necessary to the regulation of commerce itself. Necessary and Proper clause with commerce clause creates this authority. Maybe Raich was too far reaching, but the regulation of intrastate activities that substantially affects interstate commerce is arguably constitutional.
arguably? that is little more than laughable.
I believe the above poster is trying to merge the commerce clause with chaos theory. If a butterfly flaps his wings it will cause a tornado and if I sneeze wrong it causes wheat production in another state to dwindle. We must start regulating sneezes now…
Really? Can you give me something a little more substantive of a response than that? If the N and P clause allows congress to makes laws that are "convenient" to carrying out an enumerated power, than congress can reach things that are not themselves interstate commerce. Other than quoting a few founders like Madison or Jefferson, can you dispute that?
If then statements have to start with a correct IF.
If you can provide me with anything from the founding – anything at all that shows N&P allows congress to make laws that are convenient to carrying out an enumerated power, then I would address it.
I will be waiting…
Or on the other hand, If you can give me some kind of background on the common law doctrine of principles and incidents which makes up the Necessary and Proper clause, then I would know you had some kind of foundation to discuss this with.
John Marshall's opinion McCulloch v. Maryland defined "necessary" to mean "convenient" or "useful." His opinion also relied heavily on Hamilton's opinion on the constitutionality of the National Bank. Of course any opinion that is contrary to Jefferson's is considered to be wrong by many people at this site. But Marshall's opinion has been law since he made his ruling, so it will be pretty hard to convince the Supreme Court that they've been wrong all these years.
the challenge I gave you remains…
Read Marshall's or Hamilton's opinion.
the challenge I gave you remains….the founding is not 1803….
It doesn't matter what a few founders thought. You don't seem to understand that, because original intent is not followed by anyone, including originalists today. You should look at what the words meant at the time the Constitution was written, not what a few founders said. Marshall actually makes a good argument believe it or not. Can you refute what he actually said, or do you just oppose his opinion on political grounds, leading you to believe that he was wrong?
easy to refute, and it's not about quotes.
I agree – it doesn't matter what a few founders thought, and that's just what you've provided here – the opinions of Hamilton the flip flopper and Marshall – not a founder in the purest sense.
So if you'd like to take up my challenge, you can – or go away with your silliness…
If I'm not mistaken, isn't it what the makers, rather than the framers of the Constitution or the founders of the United States (which includes many who were neither makers or framers), thought the N and P Clause meant that matters most? Can you point to anything in the debates from the state ratifying conventions that would indicate a substantial number of delegates that voted to ratify the Constitution thought that the N and P clause would allow congress to makes laws that were simply "convenient" to carrying out an enumerated power in the judgement of Congress, and that Congress would be authorized to reach things that are not themselves interstate commerce? John Marshall, who was accused at his ratifying convention of taking an overly-broad view of the Necessary and Proper Clause himself specifically affirmed that it was a mere statement of what the rule would have been if the Clause had been omitted. So, it would seem you have to interpret the scope of Congressional power as if the N and P clause were absent altogether. Those so called federalists seem to have had a bad habit of saying one thing before ratification and doing almost the opposite post-ratification.
I actually interpret the NandP clause the power to make a law. You must remember that the constitution gives the congress powers. A power is simply the ability to do something and the NandP clause gives them the power to create a piece of legislation. Without this power they can't even pass a law.
I think it matters what the people who signed it thought it meant. They say it means this and the voters agreed. They agreed to what they thought it meant and not what we think it meant. Its kind of like fraud to actually change the meaning of any legal document and its even worse for the government to do it. Imagine if the government altered the meaning of the law whenever it wanted to. Would you, as a citizen, be able to restrain the government? How would you know where the boundaries between the public and private sphere exist if the govt. can alter that boundary at will simply by re imagining that boundary whenever it suits its needs?
The enumerated power you are referring does not allow the federal government the right to regulate business affairs. Just look at the word commerce a in trade between two people. When that trade crosses state lines then the federal government can enact whatever law they want barring the trade between two parties who live in different states or outside the country.
Lets assume for arguments sake that regulate commerce actually means controlling the affairs of business. Are you aware that the next phraise is 'between the states and foreign governments'. Now if regulate means it gives the federal government the right to control a business then it can only regulate a business that happens to be sitting on a state or national border of the US of A. That would be the stupidest sentence ever written in the history of mankind if that was the case.
Affecting is not necessarily the same as ACTUAL interstate commerce that crosses state boundaries. What happens if I sell guns and those guns stay within the borders of the state. There was no interstate commerce that happen so what commerce did I affect with the sale of guns?
If the Court limits the substantial effects test to economic activities, than things like guns in schools is a state matter. Non-economic activities have too remote of an effect on interstate commerce, but economic activities often do have a real effect. The courts should defer to congressional judgment on many policy choices. Unless congress is trying to regulate something that is too far removed from interstate commerce, or is trying to regulate inactivity, they should have some room to implement policies. Not everything is unconstitutional.
How is affecting interstate commerce the same as actual interstate commerce? You can say that things affect interstate commerce but that isn't the same as actual interstate commerce. Activities that affect interstate commerce aren't regulated since they are not actual interstate commerce.
It's not the same. But congress can regulate activities that have an effect on interstate commerce in order to facilitate the regulation of commerce itself.
Asking any one of the branches of the federal government if what they are doing is reasonably necessary to one of their enumerated powers is like asking a dog if he's hungry. They will always invent some new incidental or implied power. The agent (federal government) cannot be permitted to act as the final judge as to the scope of the powers delegated to him by the principal (the people of the several states). I repeat the first resolution referenced by Bob above that was adopted by the Virginia House in 1829:
"That the Constitution of the United States, being a federative compact between sovereign States in construing which no common arbiter is known, each State has the right to construe the compact for itself."
Those are two different powers. One is the power to regulate a very narrow and select range of commerce wich is commerce between two parties who happen to live on different sides of state or national borders. That is the movement of goods across those borders. That doesn't include the inner workings of a business nor commerce (trade) within a state itself. If I wanted to sell wheat, bullets, or even dope and that transactions was within the confines of the state borders then their is nothing the federal government can do about it.
Even if the seller got the product from another seller in another state and is selling that product to anther person as in a wholesale/retail situation the federal government would have no say over that particular transaction because it did not cross state boundaries. However, they can have say over the transaction between the retailer and the retailer's wholeseller who he happen to buy that product in another state. That transaction crossed state lines.
Its also the control of movement across state lines and not the inner workings of a business.
That power only gives congress the right to regulate trade traffic across state and national boundaries. In theory, it can stop marijuana trade across those boudries. It can stop it at the borders of both states and national but it can not stop it within a state.
Personally, I would not mind if congress rewrote the laws to state that these substances can't be moved across any state border. It allows states who are not into open drug use to stop drugs from entering its borders and states that do want to do drugs can harvest them as they want.
The document known as the REPORT, which Derek referenced from the 1814 Hartford Convention also stated that the individual States…"must be their own judges and execute their own decisions."
In 1829, the Virginia House adopted a set of resolutions. The first one stated:
"That the Constitution of the United States, being a federative compact between sovereign States in construing which no common arbiter is known, each State has the right to construe the compact for itself."
Kyrsten Sinema are you listening?
This is me clicking the like button…
Thanks for adding the source. I'm new to studying all of this and it's helpful.
Hi TAC!
We have posted your article at the DailyTeaParty.com. The DTP is a website that aims to help educate the Tea Party in the philosophy of Liberty.
We think that the 10th amendment is crucial to Restoring Constitutional governance we try to include as many related articles as possible.
Thank you for your great content!
http://dailyteaparty.com/?p=2341
Thank you Daily Tea Party!
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the big question is- where does the federal government get any enforcement power? what if we are somehow presumed to have contracted into that jurisdiction?
Even if a law is constitutional to whom does it apply? Not people! Why? Supreme court said in Yick Wo v. Hopkins, people are not subject to law for they are the authors of law.
Law is fiction. To bring a action under the rules of civil procedure a complaint must be well grounded in fact, not in fiction and a answer must also be well grounded in fact.
If your complaint is well grounded in fact there can be no answer well grounded in fact. So? You win automatically. If they answer they are in contempt of court for claiming a untruth as a fact. If no answer if filed you win by default and have a right to judgment by default or a right to summary judgment for failure to state a claim upon which relief can be granted.