“I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” So said presidential candidate, Senator Barack Obama, at a 2007 campaign event in Nashua, NH. And although proponents of medical marijuana later had reason to doubt him after his DEA agents raided a California dispensary, Attorney General Eric Holder soon reassured everyone that there would be change.

After a press conference held by Holder that took place shortly after the president’s inauguration, many celebrated what they interpreted as the fulfilment of his earlier promise that under his administration, the Justice Department would no longer raid medical marijuana dispensaries that were established legally under state law.

But was any such a promise in fact ever made? If one examines Obama’s campaign promises regarding medical marijuana and listens carefully to the answer Eric Holder gave at the press conference mentioned above, it’s possible to conclude that no protection or immunity was ever promised for organizations or individuals that cultivate or distribute medical marijuana in any state for any reason. Here’s what was actually said at the press conference that got so much attention.

A reporter made an observation and asked Holder a question about medical marijuana, saying:

“Right after the inauguration there were some raids on California medical marijuana dispensaries. Was that a deliberate decision by the Justice Department..do you expect those raids to continue?”

Holder responded to the question by saying:

“No..”, but then suddenly, before he could continue, Holder was interrupted by the same reporter, who happened to have microphone trouble at that same moment, making it almost impossible to hear what he said. One can make out the word “campaign”, but that’s about it. In any case, after the interruption, Holder continued. But his response became much more ambiguous. He said:

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American policy.”

Just what did Obama say during the campaign? While never promising voters safety from federal raids, arrest or prosecution, Candidate Obama made numerous statements that he did not believe raiding medical marijuana users should or would be a top priority of the Justice Department under his administration.  In fact, he put forth the following statement during a July of 2007 town hall meeting in Manchester, New Hampshire:  ”The Justice Department going after sick individuals using [marijuana] as a palliative instead of going after serious criminals makes no sense.”

In a statement made during a November of 2007 town hall meeting in Iowa he seems to support the use of medical marijuana as a means of prescribed pain relief.

“My attitude is if the science and the doctors suggest that the best palliative care and the way to relieve pain and suffering is medical marijuana then that’s something I’m open to because there’s no difference between that and morphine when it comes to just giving people relief from pain. But I want to do it under strict guidelines. I want it prescribed in the same way that other painkillers or palliative drugs are prescribed.”

While relaying these assurances during the campaign, they are certainly not reflected in the Justice Department’s policies these days, at least when it comes to dispensaries.  It seems in fact the the DOJ has taken a more direct approach, through it’s US Attorneys.

Threatening Letters

Earlier this month Governor Chafee of Rhode Island received an unsolicited letter from U.S. Attorney Peter Neronha. The letter made it clear that the Justice Department still considers marijuana cultivation and distribution to be a violation of federal law, even if done in accordance with state laws in places where medical marijuana is permitted. The letter lists potential actions the Justice Department might consider in reaction to what it deems to be violations of federal drug laws, including criminal prosecution of those involved in the cultivation and distribution of medical marijuana.

Other states that have received similar letters include Washington, California, Colorado, Vermont and Arizona. And while some states, like Vermont, are proceeding with legislation to legalize the medicinal use of medical marijuana anyway, other states seem to have been deterred. Washington’s Governor Christine Gregoire, for example, vetoed most sections of  S.B. 5073, which would have licensed dispensaries and protected patients from arrest. In other states, such as Arizona, where a law allowing medical marijuana has already passed, the implementation of certain measures now mandated by state law, such as the licensing of dispensaries, have been put on hold, pending the outcome of a federal court case.

Arizona’s Attorney General, Tom Horne, filed a lawsuit in federal court shortly after Department of Health Services Director, Will Humble, received a letter from U.S. Attorney Dennis Burke, warning him that:

“Compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution.” And that, “The United States Attorney’s Office for the District of Arizona (“the USAO”) will continue to vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving  marijuana, even if such activities are permitted under state law.” [Emphasis added]

The complaint, filed by the Arizona AG names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants and seeks a declaratory judgment, in order to resolve competing state and federal pressures. But even if the lawsuit is a sincere effort to obtain clarification and is not a mere pretext to delay the implementation of the medical marijuana law, is it really worth the delay and expense?

Enough is Enough

Both Governor Brewer and the Attorney General could save Arizonans a lot of time and money by admitting that everyone knows what the outcome will be already. The federal judiciary will claim what it has been claiming for decades: That federal law always trumps state law because of the “supremacy clause”. This has almost always been the court’s opinion, regardless of how deliberate, palpable or dangerous a violation of the Constitution the federal “law” in question might be.

For decades, the U.S. Supreme Court has engaged in naked judicial usurpation of the states’ reserved powers, by declaring that Congress has the constitutional authority to regulate or ban a plant that is cultivated, distributed and consumed, all within a state’s boundaries. Even if this plant never leaves Arizona, the Supreme Court says Congress has the authority to outlaw it because of the Constitution’s “commerce clause”.

This is a completely perverted interpretation of the “commerce clause”, of course. After all, the “commerce clause” simply states thatCongress shall have power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. But what can one expect from a group of activist judges that one blogger described as nine unelected and unaccountable bureaucratic central planners who detest the limits of the Constitution?

The fact is that despite decades of case law, the federal government has no genuine constitutional authority to regulate marijuana, medical or otherwise, that is never transported across state lines for commercial purposes. The President knows it; the Attorney General knows it; Governor Brewer knows it, and those of us who know anything about the Constitution’s original meaning and intent know it. And they know we know it!

Isn’t it time that Governors and state Attorneys General stopped wasting our precious time and money playing these silly legal games, grow a spine, and actually fulfill the oath they took to support and defend the Constitution, including the Tenth Amendment? If the people of a state decide in their sovereign capacity that marijuana should be legal, for any reason, or no particular reason at all, then their representatives in state government need to tell the folks in Washington, D.C., in no uncertain terms, that they have no say in the matter.

This is the system of vertical checks and balances that the Constitution, as it was understood by those who ratified it, established. So when it comes to decisions that the Constitution clearly leaves to the states or to the people, the time is long overdue for those who claim to be our public servants on the state level, to quit begging Washington, D.C. for permission and to start doing a little more checking and balancing already!

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

On March 14, 2011, federal police agencies raided scores of marijuana-related businesses in a number of states–including my home State of Montana. Hundreds of people were detained, put in handcuffs, and their property seized. To my knowledge, however, only a handful has actually been arrested (at least in Montana).

Montana is one of several states in the union that has legalized marijuana for medical purposes. This was accomplished with overwhelming support from the Montana citizenry via a ballot initiative back in 2004. However, the feds view marijuana as an illegal drug, and seem hell-bent in forcing states such as Montana to submit to its dictation–regardless of what the will of the people within the states might be.

Ever since Appomattox Court House, states have been bullied into believing that their authority is subordinate, and, yes, inferior, to federal law. Big Government lawyers cite the US Constitution, Article. VI. Paragraph. 2. to justify their despotism. It reads, “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.”

This paragraph of the Constitution has been construed to mean that the federal government may dictate any law to the states and the states have no right to resist. THIS IS NOT TRUE! Notice carefully what the Constitution says: “This Constitution, and the Laws of the United States WHICH SHALL BE MADE IN PURSUANCE THEREOF . . . shall be the supreme Law of the Land.” (Emphasis added)

This means that any federal law that is NOT “made in Pursuance thereof” or otherwise does not comport with the Constitution is NOT the “supreme Law of the Land.” Furthermore, it is the states that are the final authority over what is and is not lawful within their respective borders! This is the clear understanding of America’s founders, including Thomas Jefferson and James Madison, who wrote the Kentucky and Virginia resolutions, drafted in 1798 and 1799, in response to the egregiously unconstitutional Alien and Sedition Acts.

In the next place, the Tenth Amendment to the Constitution plainly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And nowhere does the US Constitution assign local and State law enforcement responsibility to the federal government. Nowhere! Meaning: law enforcement is clearly and plainly the responsibility of State and local government–not the federal government!

Pray tell, what are states doing, when they submit to the usurpation of State power and authority by accompanying and facilitating federal encroachment, be it the enforcement of marijuana laws–or any other laws, for that matter? Accordingly, Montana’s Attorney General Steve Bullock should be removed from office for allowing the citizens of Montana to be subjected to this federal overreach!

But there is much more at stake here than the alleged misuse of medical marijuana! The feds’ “war on drugs” has inflicted as much damage to constitutional governance and individual liberty than just about anything I can think of. At this point, my constitutional attorney son, Tim Baldwin, picks up the column.

For almost 100 years in the United States, countless resources have been spent feeding–oops–I mean, “fighting” the “war on drugs”, specifically marijuana. Before that time, marijuana was largely acceptable and viewed as inherently valuable throughout the world. Today, medical science seems to support its use for certain purposes–not to mention whatever social uses for which some may advocate its use. However, since 1937, Congress has deemed that marijuana has absolutely no medical benefit and purpose and made anyone who possesses it subject to extreme criminal penalty. The history behind Congress’ enactment is quite suspect, and the “war on marijuana” deserves objective attention.

Despite Congress’ labeling marijuana as a dangerous drug without any medical use and with a high potential for abuse, fifteen states in the union (the last I looked) have declared otherwise. So, what insistent force keeps Congress from removing marijuana from CSA’s Schedule 1? Answered by historical comparison, Dwight D. Eisenhower’s reference in 1960 to the military-industrial complex should have included the marijuana-bureaucracy complex created by this “war on marijuana”. As a limited point of illustration, consider the mass raids which took place on March 14, 2011, throughout Montana by federal, state and local law enforcement agencies–spearheaded of course by federal agencies, with the state and local agencies acting as tagalongs.

On March 15, 2011, the United States Department of Justice (DOJ) released a written press statement regarding the numerous and simultaneous raids which took place in the great state of Montana–one of the several states which has declared by law that marijuana in fact has medical value and is lawful to use as such. In this statement, the DOJ listed the number of law enforcement agencies involved in the raids. The following is an excerpt from that public statement, indicating at least how many agencies where involved:

“[T]he Drug Enforcement Administration, U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of Investigation, the Environmental Protection Agency-Criminal Investigation Division, U.S. Customs and Border Protection-Border Patrol, and the Occupational Safety and Health Administration. These federal agencies were assisted by the Montana Division of Criminal Investigations, and local High Intensity Drug Trafficking Area task forces, the Northwest Drug Task Force, the Kalispell Police Department, the Flathead County Sheriff’s Office, the Missoula Police Department, the Missoula County Sheriff’s Office, the Missoula High Intensity Drug Trafficking Area (HIDTA) Task Force, the Great Falls Police Department, the Cascade County Sheriff’s Office, the Central Montana Drug Task Force, the Billings Police Department, the Yellowstone County Sheriff’s Office, the Eastern Montana High Intensity Drug Trafficking Area (HIDTA) Task Force, the Dillon Police Department, the Beaverhead County Sheriff’s Office, the Park County Sheriff’s Office, the Bozeman Police Department, the Gallatin County Sheriff’s Office, the Missouri River Drug Task Force, the Helena Police Department, the Lewis & Clark Sheriff’s Office, and the Eastern Montana Drug Task Force-Miles City” (U.S. Department of Justice, Michael W. Cotter, United States Attorney, District of Montana, News Advisory, March 15, 2011).

Did you get all that?! It would take some people shorter time to read a chapter in the Bible than it would to read this list of agencies supposedly pursuing “criminal enterprises that have violated the Controlled Substances Act (CSA) related to marijuana.” Ibid.

So, how many government agents were involved within those departments who were paid in that pursuance? How many government staff members or private contractors were involved to assist those investigations? How many high-dollar pieces of equipment and surveillance were paid for and used in those investigations? How many clerks will be needed to keep the public record files? How many pieces of paper will be printed? How many prosecutors will be paid to prosecute and judges paid to adjudicate these man-made crimes? How many public defenders will be needed to defend them? How many jail personnel are employed to make sure these “criminals” reside in jail? How many food dispensaries are paid to deliver food to these same inmates? How many fees and fines are collected from the defendants and paid to the various governments as mandated by statute? How many drug rehabilitation programs are funded by tax dollars to “treat” these “drug addicts”? How many lobbyists are paid to use such statistics to show why more taxes are needed to sustain these criminal-pursuing operations? How many tax dollars were and will be used to pay for every person and everything involved, directly or indirectly, in this “war”? The numbers would undoubtedly rise into the billions. Can anyone say job security or economic stimulation?

Drawing from my own personal experience, I see the absurdity of the “war on marijuana”. During my time as a prosecutor at the Florida State Attorney’s Office from 2004 to 2006 where I handled literally thousands of criminal cases and tried nearly 60 jury trials, I was never impressed that marijuana was the cause of any criminal activity. Oh sure, possession of marijuana charges comprised a large number of my criminal cases; but the criminal act was merely the man-made law of possession of marijuana. In fact, most criminal activities were in large part caused by alcohol, where one who consumed too much alcohol became violent; beat his wife; neglected his children; drove drunk and hurt someone; caused a disturbance of the peace; or other similar evils. I saw those alcohol-related cases every day. Yet, I cannot say the same regarding marijuana. I would estimate that of the thousands of cases I handled, at least half (if not more) were a direct cause of alcohol consumption or addiction. Yet, alcohol is legal and marijuana is illegal.

In truth, about the only reason anyone can advocate for not treating alcohol in the same legal manner as marijuana is that “alcohol is too much ingrained into societal norms.” Try to convince an inquiring child on that logic: it will not stand. This logic of course is even more disturbing considering the harsh penalties carried with marijuana laws where lives are destroyed by government action. Perhaps too many politicians love their alcohol too much to make it a target of reprisal.

Still, there must be a target to perpetuate the bureaucracy and marijuana appears to be that target. Even more disturbing in the scenario is that the States cater to the federal government’s manipulation on the matter, making any and all activities relating to marijuana illegal. To suppress that “evil of marijuana”, varieties of government create pyramids of law enforcement agencies for the large purpose of arresting persons acting in relation to marijuana, and the ball of revenue generation rolls through the course of government and social programs. But how else will government power, size and control increase unless it has a “war” to wage?

Chuck Baldwin is a syndicated columnist, radio broadcaster, author, and pastor dedicated to preserving the historic principles upon which America was founded. He was the 2008 Presidential candidate for the Constitution Party. He and his wife, Connie, have been married for 37 years and have 3 children and 7 grandchildren. See Chuck’s complete bio at:
http://chuckbaldwinlive.com/home/?page_id=6

State nullification, as Thomas Jefferson put it, “The rightful remedy.” Simply defined, any action taken by a state that renders an unconstitutional act null and void.

Over the last several months, the mainstream media suddenly sat up and took notice, primarily due to state efforts to nullify the federal health care act.

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But long before the uproar over Obamacare, states were already exercising their sovereign right and duty to defy unconstitutional federal acts.  And while the mainstream media and political pundits may not recognize it as nullification per se, the movement to legalize medicinal marijuana across the nation serves as the most powerful and successful example of state nullification to date.

Currently, 15 states and Washington D.C. have laws on the books making the possession and use of cannabis for qualified medical conditions legal.

The effectiveness and dangers of using marijuana remain a matter of debate. But a 1999 report by the Institute of Medicine did find that cannabis helped some people deal with certain illnesses.

“The IOM report, Marijuana and Medicine: Assessing the Science Base, released in March 1999, found that marijuana’s active components are potentially effective in treating pain, nausea and vomiting, AIDS-related loss of appetite, and other symptoms and should be tested rigorously in clinical trials. The therapeutic effects of smoked marijuana are typically modest, and in most cases there are more effective medicines. But a subpopulation of patients do not respond well to other medications and have no effective alternative to smoking marijuana.”

But according to federal law, Americans cannot grow or possesses marijuana, even for medicinal use. Even if their doctor prescribes it. Even if the state says it’s OK.  And the Supreme Court agreed, ruling in Gonzales v. Raich that state-level medical marijuana laws were, in essence, illegal.

“…the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

But that didn’t stop California. Or Colorado. Or even Michigan. These states, along with 12 others, stood their ground and passed laws allowing medicinal use of marijuana within their borders. The lawmakers and citizens of those states deemed it beneficial to allow the use of cannabis for medical purposes and to this day, continue the practice, in direct defiance of federal “law.”

“After the supremes told the country that such laws were a big no-no, how many were repealed? Zero,” Tenth Amendment Center executive Michael Boldin said.

In fact, the movement continues to grow. Since the beginning of the year, 19 states have introduced legislation to legalize cannabis for medicinal use, including some traditionally socially conservative states such as Tennessee, Florida and West Virginia. And a few states, including Texas, Illinois and Maryland have pending legislation that would take it a step further, completely decriminalizing marijuana possession in small amounts.

What’s the fed to do?

Apparently, nothing.

And that’s the beauty of nullification. When enough states get together and defy unconstitutional federal overreach the fed ultimately has little choice but to back down. This is exactly what James Madison envisioned – a state check on federal power.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

The movement to legalize marijuana for medicinal use at the state level represents the republican system at its best. The citizens of each state decide for themselves, through their elected representatives, if they want medicinal marijuana, and if so, how to best implement their wishes based on the circumstances, beliefs, values and political system in that particular state.

Instead of a one-size-fits all dictate passed down from Washington D.C., each state experiments and finds its own solutions. It’s difficult to understand how anybody could oppose this concept.

The media may continue to decry nullification as a dusty relic used to subjugate slaves, but the growing resistance to federal marijuana laws proves nullification a viable and effective option.

Or, as Jefferson said, “The rightful remedy.”

Originally published in the Los Angeles Daily News on 02-15-11

Nullification. The word evokes images of white-haired men with tri-fold hats, holding up signs about the “evils” of Obamacare and socialism.

States around the country are considering laws to reject federal laws on health care, guns, Environmental Protection Agency regulations and more. The pundits scream “racism,” the legal experts cite the “supremacy clause,” and the entire country – left to right – just might be missing the point.

As executive director of the Tenth Amendment Center, the organization which created the “Health Care Nullification Act” introduced in more than 10 states, I see many people who fit this stereotypical “tenther” image, too.

Whenever I speak at “Nullify Now!” events around the country, the crowd is predominantly these folks. While a few progressives occasionally join the protesters, one doesn’t find too many 20-somethings with Che T-shirts attending such events.

While the rhetoric coming from many on the right these days includes words like “nullification,” and “state sovereignty,” it has been the left, not the right, which has been successful in putting these ideas into practice. And, California has been at the forefront since the beginning.

When Californians voted to approve Proposition 215 to allow medical marijuana, the word “nullification” was not part of the argument, but it most certainly was the result. Opponents often cited the Constitution’s “supremacy clause,” saying the state had no authority to violate federal marijuana laws. But, Californians voted to violate those laws by the millions. And, when the Supreme Court ruled in the 2005 Gonzales v. Raich case that state-level medical marijuana laws were, in essence, illegal, dispensaries around the state didn’t start closing shop.

In fact, by 2005, there were nine other states that had joined California in passing medical marijuana laws. After the supremes told the country that such laws were a big no-no, how many were repealed? Zero. And since then, another five states – most recently, Arizona – have joined up.

Think about that. There are now 15 states actively defying Congress and the Supreme Court – and they’re getting away with it. This, more than anything else, is what nullification is: any action which results in federal law(s) being rendered nearly unenforceable.

Green Door Hydro, Los Angeles

When I took a bike ride around my neighborhood in downtown L.A. the other day, I didn’t find a single Drug Enforcement Agent shutting down an arts district grow shop. A recent trip to Venice confirmed my hunch that there are plenty of businesses and individuals openly nullifying federal laws with dispensaries galore. A visit to the Bay Area last fall verified the same.

But yet, how often does one hear a legal scholar or a political pundit spending time and energy on how these pot-dealers and pot-smokers are bringing chaos to America?

How often do you hear that this active nullification of federal drug laws is done by people who hate President Obama for being black? I’ll assume you’ve that heard just about as much as I have – never.

Medical marijuana isn’t the only issue where Californians have taken a lead in standing up to the feds. In 2006, when the Congressional Research Service released a report on “sanctuary cities” around the country, California was at the head of the pack, with more major cities on the list than any other state in the country.

Oddly enough, I haven’t heard about Washington, D.C., threatening to withhold highway funds. The national guard hasn’t been sent in to force these cities to comply with federal immigration laws. But yet, that’s what some claim will happen if health care nullification laws are passed today.

I doubt it. If today’s nullification proposals follow in the path of the left’s nullification of federal drug and immigration laws, it’s quite possible we’ll see the same kind of results. The feds backing off.

The real question, of course, is this – will gay marriage advocates in Maine, health care nullification advocates in Idaho, gun rights activists in Oklahoma, and marijuana advocates in California ever realize that they’re actually on the same side?

They likely don’t agree on specific issues, but they agree with their actions; the most difficult and divisive issues need to be dealt with close to home, in their states. Either way, it’s good to be in California, where nullification is alive and well.

Late one evening, a DEA agent shows up on at the doorstep of a farmhouse in south central Kentucky. He pounds on the door impatiently, waits about 15 seconds and pounds again. Growing more agitated, he shakes the screen door, turns in a circle and then gives the door a couple more good, hard raps.

Finally, a grizzled old farmer opens the door and peers into twilight.

“Sorry to keep ya waitin’. Was just fixin’ to eat some supper. How kin I hep, ya?”

The agent stands tall and straight and  in his  most official voice declares, “I’m Agent Murdoch, DEA. I’m here to inspect your fields to make sure there are no illegal drugs growing on this property,” He pauses a moment with an air of gravity.  “I’m not asking permission. Just letting you know.”

The old farmer steps out onto the porch as the rickety screen door clatters closed behind him. He hitches up his coveralls and peers quizzically at the agent, absentmindedly brushing a fly away from his forehead.

“I reckon that’ll be jist fine,” he says. “But I’ll just warn ya – ya don’t want to go into the west field over yonder,” he said, pointing to an old rusty gate silhouetted in the setting sun.

The agent bristles, reaches into his suit coat pocket and whips out a badge.

“You see this old-timer? It says DEA. That means I can go anyplace I damn well please. And  I can do anything I damn well please. I have the authority. Do you understand me?”

The old farmer, simply shrugs and cocks one busy, old eyebrow.

“Suit yeer-self, son.”

The agent quickly strides across a dusty driveway and makes his way through the creaky gate, heading  into the west field. The farmer follows and leans nonchalantly against a fence post next to the gate, gnawing on a toothpick.

The fed makes it about half way across the field when Roscoe, a massive red bull, suddenly charges out of a treeline near the back of the field. The agent, screams in horror and turns, hightailing it toward the gate. But it quickly becomes clear he’ll never make it. The 2,000 pound animal quickly closes the gap between itself and the agent.

Moments before a certain goring, the farmer cups his hands around his mouth and yells, “Show him yer badge! Show him yer badge!”

***
I respect authority.

But when an individual or institution takes its authority beyond prescribed limits, it’s clear in my mind that we have the right to resist.

Most people in the United States seem to hold the federal government in awe. It goes beyond respect into what I would call an unwarranted reverence. Yes, we should respect legitimate authority. But when the feds exercise power not granted by the Constitution, citizens have a right and duty to stand against it. We’re not talking rebellion against legitimate authority. We are talking about standing firm against unwarranted, unconstitutional and illegal acts.

And we can stand against it – through our state governments.

James Madison understood the power of the states and the people, and he envisioned it a check on overreaching federal power. When the states band together and stand against unconstitutional overreach, they become a rampaging bull. And no federal badge can stop it.

Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter. – James Madison, Federalist 46

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by Mark Thornton, Mises.org

[Watch the interview with Mark Thornton on Prop. 19.]

Proposition 19 in California would have legalized marijuana, but it fell short. Victory seemed almost a foregone conclusion for many; after all, it is California. For millions, both in California and across the country, news of Prop. 19′s failure came as a major disappointment. However, it should be considered a great victory for such a radical measure to get 46 percent of the vote in open defiance of federal law, especially considering the intense opposition. Plans are already in the works to put the initiative back on the ballot for the 2012 election, which is expected to have higher turnout from young people. But in order for the ballot initiative to succeed, we must first understand why it failed.

The Opposition

In order to understand the depth and strength of the opposition, it is necessary to understand what Prop. 19 is really about. This legislation would be in open opposition to federal law as well as to a United Nations treaty that supports the drug war. It would be a law passed by the people, not the legislature. Most importantly, it would demonstrate that in the absence of marijuana prohibition, society can survive and thrive.

This example would give other states the idea that they could also effectively repeal marijuana prohibition. It might even create a national effort to repeal marijuana prohibition. It might even give people the idea to repeal other silly and harmful federal laws. This would open a can of worms for federal authority and bring back the idea of a people’s nullification.

So as you can see this was a critical victory for federal authority. It is not just that some potheads forgot to register to vote. Lots of money was spent, lots of lies were told. This was the equivalent of a goal-line stand for federal authority.

Bruce Yandle created the “bootleggers and Baptists” model of politics to describe how special-interest groups who normally oppose each other work for a common goal. With alcohol prohibition, Baptist preachers teamed up with bootleggers and moonshiners to make and keep alcohol illegal. Today we see the shared interests of environmental groups and established oil companies, who both want drilling restricted.

Those opposing Prop. 19 included everyone from marijuana dealers to megachurch preachers. All the powerful politicians, candidates, pot smokers, and even the California Beer and Beverage Distributors Association joined the team. The ancient proverb “the enemy of my enemy is my friend” perfectly describes the relationship of these seemingly unlikely bedfellows.

Politicians

Politicians lined up solidly against Prop. 19, as you would expect. Gubernatorial candidates Jerry Brown and Meg Whitman opposed it. US Senate candidates Barbara Boxer and Carly Fiorina opposed it. California senator Dianne Feinstein opposed it. California representative and speaker of the house Nancy Pelosi opposed it. Both candidates for attorney general opposed it.

In an attempt to dishearten supporters of Prop. 19, US attorney general Eric Holder issued a statement that he would vigorously enforce federal law in California even if Prop. 19 passed. In a similar vein, Governor Arnold Schwarzenegger signed a bill making possession of small amounts of marijuana a minor violation punishable by a maximum fine of $100. This was a last-ditch effort to undermine support for Prop. 19 by giving the impression that marijuana was de facto a legal drug.

Even Mexican president Felipe Calderon and Colombia’s Juan Manuel Santos vocally opposed Prop. 19 — not surprisingly, given that Mexico and Columbia receive a great deal of money from the United States to fight the War on Drugs, and both countries generate substantial incomes from the sale of illegal drugs. Legal pot in California would have been a big blow to both marijuana and cocaine sales from south of the border.

Bootleggers

There is good evidence that those who currently grow and sell illegal marijuana opposed Prop. 19. The “Emerald Triangle,” consisting of Humboldt, Mendocino, and Trinity Counties, is the major marijuana-growing region in Northern California. According to Mother Jones, those three counties voted to defeat Prop. 19:

“There’s a large movement up here of people who realize that their self interest lies in keeping marijuana illegal,” says Hank Sims, the editor of the North Coast Journal, based in the Humboldt town of Eureka. Growers in the Emerald Triangle’s rugged hills and foggy redwood groves are shielded from the snooping eyes of the DEA, but that advantage would become a handicap if pot could be openly cultivated in California’s warm, flat, agribusiness-dominated Central Valley. North Coast ganja growers “have got government-sponsored price control in the form of busts,” Sims explains. “So I think a lot of people kind of cynically voted their pocketbook and voted to keep it illegal.”

There was even a group called “Stoners against Legalization,” but it turns out that it was headed up by a drug-law attorney who would have lost a great deal of her business had Prop. 19 passed. Likewise, medical marijuana shops have come out against Prop. 19 on the ludicrous notion that legalization would reduce patient access to marijuana.

Baptists

Segueing from bootleggers to Baptists, we find this headline from the East Bay Express: Stoners against Legalization Team Up with Ex-Crackhead Priest. Of course, the priest was joined by fundamentalist Christians as well. The East Bay Express reports,

Backed by the California Beer and Beverage Distributors, no on 19 group “Public Safety First” employed the powerful Christian fundamentalist organization Vision to America. [T]he anti-gay rights group asked its hundreds of thousands of believers nationwide to “help us get the word out about our campaign to defeat legalized recreational marijuana in schools.”

The California Beer and Beverage Distributors, who would be hurt by lower marijuana prices, teamed up with church-based Vision to America — talk about bootleggers and Baptists in action — to raise money, run advertisements, and mislead the public debate. They claimed that Prop. 19 would lead to allowing truck drivers, nurses, and students to get high before driving, nursing, and going to school. The Chamber of Commerce also aired some blatantly misleading advertisements.

The truth, of course, is that students, nurses, and truck drivers can be prevented from getting high before showing up, just as they are prevented from getting drunk. The truth is that businesses can prevent customers and employees from smoking pot on their property, and insurance companies would not go along with businesses that let their employees get high and operate heavy machinery or fly planes. In fact, marijuana is safer than alcohol and is probably only the 10th-most-problematic recreational drug.

Given the powerful forces opposing Prop. 19 — along with their lies and trickery — the forces of liberty and prosperity should not be disheartened by this initial defeat. We now have a copy of their playbook — politicians, pot growers, and medical-marijuana dealers oppose legalization, while Christian organizations, beer distributors, and drug lawyers spread lies to protect their self-interests.

Mark Thornton is a senior resident fellow at the Ludwig von Mises Institute in Auburn, Alabama, and is the book review editor for the Quarterly Journal of Austrian Economics. He is the author of The Economics of Prohibition, coauthor of Tariffs, Blockades, and Inflation: The Economics of the Civil War, and the editor of The Quotable Mises, The Bastiat Collection, and An Essay on Economic Theory. Send him mail. See Mark Thornton’s article archives.

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.”

Get the New Book Today!

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

The following article is based off a speech given on 09-25-10 at the 25th Annual Gun Rights Policy Conference in San Francisco, CA.
Michael will be a featured speaker at Nullify Now! in Orlando on 10-10-10 and Chattanooga on 10-23-10. Get tickets here – http://www.nullifynow.com/tickets/ – or by calling 888-71-TICKETS

I’ve often been told that when you’re giving a speech – if all you get is applause and cheers – and you never piss anyone off – you’re no better than a low-life politician, because you’re not challenging anyone’s conventional mode of thought. Hopefully, I get at least a few eyebrows raised here in my 8-9 short minutes….

So let’s start out with the easy stuff, ok? I’m a tenther. That means I believe that the federal government should exercise only those powers that we the people delegated to it in the constitution – and nothing more. For example, no Obamacare mandates, no bank bailouts, and definitely no federal gun laws – period.

Question. How many people here own a gun, or manufacture or sell guns?

And how many of you are proud felons – meaning, when the government makes rules to restrict your right to keep and bear arms, you simply ignore them because they don’t have the authority to do so?

HEMPCON

I recently went to an event called Hemp Con down in my part of the state – Los Angeles. This is a big event at the LA convention center – with loads of vendors and businesses from every angle you can think of in support of the marijuana industry. There were home security companies to help protect your weed, solar power companies to help you grow your weed, doctors giving out medical marijuana cards to virtually anyone with $80 and an hour of time. There were even delivery services – you can get your marijuana delivered to you 24 hours a day…in 30 minutes or less. The pizza companies have nothing on these guys! It was amazing if you think about it from an economic standpoint – this was capitalism, the free market – working its wonders around an industry.

What’s the point?

Virtually EVERY single one of those businesses was either directly violating federal law, or aiding someone else in doing so because marijuana is illegal, according to the feds – but not the constitution – in all situations. In 2003, Tommy Chong was arrested for merely selling pieces of glass – pipes that could be used to smoke marijuana. And today, 7 years later, we’ve got what seemed to be the WalMart of weed in Downtown Los Angeles. And guess what – no ATF or DEA thugs shut the place down. Business functioned, people did what they wanted to in freedom, and that was that.

FREEDOM TO TRAVEL

Another quick story.

In 2005, the Bush administration got the REAL ID act passed, which was – in the eyes of many – a new form of a national id card. We were warned that if this act wasn’t followed, people wouldn’t be able to travel, enter federal buildings, get on planes, and the like.

Much of my girlfriend’s family lives in Missouri, a state that’s not in compliance with the Real ID act. Her relatives do a little traveling from time to time. They get on airplanes and show their non-compliant Missouri driver’s license. No federal agents stop them and prevent them from boarding a plane.

Well, most state DL’s – including those in Missouri – don’t comply with the Real ID Act. That law is still on the books in DC – it’s never been repealed. It’s never been challenged in court either. But – due to 25 states refusing to comply with the “law” – in much of the country that Real ID act is virtually null and void.

Here in California- the state always seems to be on its knees, begging the feds for something. Well, except on marijuana. In 2005, the Supreme Court ruled that state medical marijuana laws were illegal. At that time there were 10 states that had such laws. Do you know how many were repealed? Zero. And today, there’s 14 states defying Washington dc, and getting away with it.

Today, we see the Firearms Freedom Act movement growing along these lines – it’s already passed in 8 states. Following that lead, 5 states have passed laws saying no to Obamacare mandates too.

THE LESSON

What’s the lesson? This is the blueprint – when enough people say no to unconstitutional laws, regulations….and mandates….and enough states pass laws to back those people up – there’s not much the federal government can do, but slowly and consistently back off. There’s no tanks rolling into Los Angeles to shut down the dispensaries, and there’s no jack-booted thugs forcing people to get new driver’s licenses in Missouri. This is far from perfect, but it can work, and it is working right now.

So here’s the final question – and the big challenge to you today.

The next time you begrudgingly follow some federal “law” that restricts your right to keep and bear arms – or the next time you hear about a gun rights case that will be decided in 2, or 4, or 6 years – with the hope that some judge will give you permission to exercise your rights, ask yourself this question:

Do you….gun rights activists….have as much courage as the pot smokers?

For the sake of liberty – I hope you do – because I believe that we the people need to exercise our rights whether they the government wants to give us “permission” to or not!

Michael Boldin [send him email] is the founder of the Tenth Amendment Center.

Federal Health Insurance Mandates: Why You Can’t Oppose them and Support Federal Marijuana Bans at the Same Time.

Is there any limit to what the Commerce Clause allows Congress to do?   Let’s take a look at the Commerce Clause, which states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Though the clause has been extended by the U.S. Supreme Court in an almost continuous fashion since the Constitution was ratified, its 1942 decision in Wickard v. Filburn was a monumental extension.  In issue in Wickard was the ability of Congress to regulate how much wheat a farmer could grow, when the wheat was not going to be traded in the market and would be used for the farmer’s own consumption.  Filburn was prosecuted for growing 23 acres of wheat in the face of a federal statute allowing only 11.1 acres to be grown.   Filburn argued Congress had no authority to restrict how much wheat he could grow because the excess wheat he was growing was for his own use on his farm and not for sale on the market.  Thus, he claimed the excess wheat would never become involved in interstate commerce.

In holding that Congress did not exceed its authority, the Supreme Court stated:

One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.

(emphasis added).

Above, it is seen that regulating commerce has been interpreted to mean regulating things that “could affect” interstate commerce.   The Court ruled that excess wheat “tends” to find its way into interstate commerce, without any proof that the wheat in question actually does – much like assuming that since black markets tend to arise when government limits supply, Filburn was already in that class of persons who trade in black markets.   One would have to ask whether it is an appropriate standard of judicial review for our Supreme Court to assume guilt, rather than innocence.

However, the Court partly dodged its assumption of guilt by pointing out that even if Filburn was an otherwise law-abiding citizen, to the extent he grew his own wheat, he would not have to purchase what he needed from the open market.   Thus, the Court concluded, allowing many people to avoid price regulation by supplying their own needs would thwart Congress’ desire to maintain higher wheat prices.   Filburn’s lack of demand for wheat on the market would accordingly “affect” interstate commerce by the simple fact that he would have no need to make purchases from the market.

Incidentally, one can easily speculate that the federal mandate to purchase health insurance might be upheld on this reasoning – i.e., the absence of need for health insurance reduces demand for it.  Is this not true with respect to every product offered for sale by third-parties?

Gonzales v. Raich was a 2005 U.S. Supreme Court opinion which relied heavily on Wickard.  Raich relied on California’s laws permitting marijuana use for medicinal purposes, which also allowed her to grow marijuana for her personal consumption.  The federal government refused to recognize that California’s laws afforded her any rights to engage in such activities.

The Supreme Court wrote:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses …” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets….

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.

Interestingly, the issue in Raich was not one of price controls.  Instead, it concerned an outright ban.   Nobody was arguing the price of marijuana should be higher and Raich should go out on the open market and purchase it.

So, what remains is the Court’s observation that regulation by the federal government was proper because of “the likelihood that the high demand in the interstate market will draw such [home-grown] marijuana into that market.”  Here, it can be seen that the Court’s opinion inescapably hinges on its assumption that Raich would turn criminal and begin selling her home-grown marijuana in the interstate market.

In short, what can be concluded from the similarities between Wickard and Raich is that it is enough to justify federal intrusion into state concerns if something has the potential to become involved in interstate commerce, and not whether it actually does.  Moreover, Raich makes it clear that in the face of federal regulation of interstate commerce, one who possesses items against the will of the federal government will inevitably become a criminal.   Thus, a person’s potential to become a criminal makes him a criminal.

Justice Thomas vigorously dissented in Raich, stating as follows:

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States,” Art. I, § 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value….

This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “`the production, distribution, and consumption of commodities.’” Ante, at 25 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 (O’CONNOR, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

(emphasis added).

In Thomas’ dissent, the emphasized language is the exact language relied upon by opponents of the new health insurance mandates.   Simply put, opponents argue that the insurance mandates are Unconstitutional because the decision not to purchase insurance is not the act of engaging in “economic” activity; it is merely the act of one’s existing and deciding not to engage in a particular economic activity.

In conclusion, Raich involved an issue, legalized marijuana, which a great number of people oppose.   For that reason, it is common to see many advocates for less government who have the opinion that Raich was properly decided.   They advocate for less government but oppose legalizing marijuana.

For those who are within the foregoing category, a serious conflict arises.   To support the decision in Raich is to admit that the federal government does, indeed, have the authority to force purchases of health insurance and to require compliance with a myriad of mandates with which such people would normally disagree.

Some might argue that Raich actually engaged in behavior, i.e., growing plants, thus, laying the grounds to allow federal regulation over her.  However, the same could be said for any activity.   For example, consuming alcohol and fast food, as well as working hard, are activities that, under the same logic, should be subject to regulation by the federal government, e.g. “Any person who consumes alcohol or fast food, or who works hard, shall be required to maintain health insurance meeting the minimum requirements of this Act.”

It seems there are only two plausible ways in which to deal with this conflict in the context of the limits, if any, on the federal government’s authority to regulate commerce among the states.   The first is simply not to concern one’s self with the rules of law and to just argue points based on an inconsistent reasoning.  The second is to gain a higher appreciation for why the rules of law were crafted as they were and to be willing to concede to proper reasoning.

Using the principles of law relied on by the federal courts to maintain a federal ban on marijuana use, one cannot be both:  (1) against the federal government’s new health insurance mandates, and (2) against a state’s right to legalize marijuana use.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

Quote of the Day: “All substances are poisons: there is none which is not a poison. The right dose differentiates a poison and a remedy.” — Paracelsus (1493-1541)

The baseball pitcher, Roger Clemens, is in the news. He has been charged with the supposed crime of lying to the politicians in Congress about his use of steroids.

* How should we think about this?
* What are the Constitutional issues involved?

To answer these questions we offer you some imaginary testimony — things Roger Clemens could have said to Congress, instead of what he did say.

* You’ve heard of people “pleading the 5th” — invoking the 5th Amendment’s protection against self incrimination, but . . .
* James Wilson argues that Clemens should have “plead the 10th” — invoking the 10th Amendment’s limitation of federal power.
* You’ll see why when you read the imaginary testimony below.

An earlier version of this was published on Thursday, January 10, 2008, when Clemens was first called to testify before Congress. This slightly edited version makes points that are just as relevant now.

*******

Has anyone ever refused to answer a question from a federal inquisitor on Tenth Amendment grounds? I don’t know, but I’d love to hear it from Roger Clemens when he testifies at a House Oversight and Government Reform Committee next month:

“Mr. Chairman, I have read the Constitution and it does not grant you authority to hold a hearing on steroid use. Therefore, I will exercise my rights as an American citizen under the Tenth Amendment, and my natural rights as a human being, by refusing to answer your questions.

“But let me clarify one thing: I do see under Article I, Section 8 of the Constitution that Congress has the authority to regulate commerce among the states and with foreign nations. It’s possible that this includes anything that relates to the selling of goods across state lines. I will therefore affirm that . . .

“I do not know how or where steroids are produced or distributed, and even if I may have known someone who sold steroids, I never saw him or her transport them across state lines. Therefore . . .

“To the extent that a Congressional hearing on steroids might conceivably be Constitutionally legitimate, because the steroids may have been produced in one state and sold in another, I do not have any information to help you.

“And to the extent that this hearing is illegitimate because there is no federal power to regulate such substances, I refuse to help you, and instead suggest that you obey the Constitutional limits on your power.

“My non-cooperation does not mean that I endorse performance-enhancing drugs in baseball or anywhere else. Major League Baseball is a private organization, and has the right to ban steroid use, and suspend or fine those who disobey. I can see the merit in this. Young men shouldn’t have to choose between a huge paycheck today and poor health tomorrow. So . . .

“I agree with Major League Baseball’s decision to ban steroids, but your help isn’t needed. Tens of billions of dollars have been squandered on waste, fraud, and abuse in Iraq, yet you insist on holding a hearing on a problem that the private sector is taking care of by itself.

“The Constitution you have sworn to obey gives Congress few and specific powers. Prohibiting individual drug use is not among them. Such things are clearly left to the states and to “the people,” as the Tenth Amendment says.

“If steroid possession or use should be illegal, the states should have laws and enforce them. But better yet, if drugs are so bad, the private sector could provide drugs tests, and indeed much of the private sector, including baseball, already does this. We do not need federal police and federal prisons warehousing thousands of non-violent drug dealers and drug users. The whole War on Drugs, of which the War on Steroids is a part, is a Constitutional travesty.

“I will not defend steroid-dealers, or any other kind of drug-dealer, but if they are bad, you members of this Committee are much worse. At least steroid-dealers serve willing customers, whereas you use threats of violence against the unwilling, as you did when you forced me to appear before you today.

“The federal republic was formed to provide an internal free-trade zone and a common foreign policy for the states. The federal government has the power to arrest and try people in only a few narrow areas, such as treason and counterfeiting. Steroid use may be dangerous. Steroid use may possibly be immoral. But steroid use is none of your business.

“I do not recognize the legitimacy of this hearing. I will now leave.”

The Downsize DC Foundation is a non-profit organization organized as a 501(c)(3) which means that contributions are tax-deductible to those who itemize. The Downsize DC Foundation has a public education mission. Specifically, we seek to demonstrate that small government — Downsizing DC — leads to Human Progress.