by Josh Eboch

Anyone who desires a constitutionally limited federal government should remember and celebrate that its limitations would necessarily cut both ways. Because if federal policy actually adhered to the letter of the Constitution, no single ideological camp could wield sufficient power to impose a set of beliefs on the entire country.

Which was exactly the point of our federalist system, and of the 10th Amendment. Beyond specific, enumerated federal powers, an infinite number of issues were intentionally left to the authority of the people through their state governments. And it is to the states that liberals, conservatives, and even libertarians must address all questions extending beyond the constitutional purview of federal authority.

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My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues – very few, that is – they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which 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.”

The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state – would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law – and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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Paul Armentano, Deputy Director of NORML – the National Organization for the Reform of Marijuana Laws discusses the unconstitutional nature of the war on marijuana, the history of marijuana prohibition in the U.S., the commerce clause as a federal excuse to regulate and prohibit various activities, 13 states that are directly resisting unconstitutional federal laws, a rare 10th amendment victory in the Supreme Court, the growth of taxes on marijuana into outright federal control and prohibition, a state-level strategy to rein in the federal government, and his new book, Marijuana is Safer – So Why are We Driving People to Drink?

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NORML

LewRockwell.com

AlterNet.org

The Hill

Marijuana is Safer

The Worldwide Marijuana March drew more than 300 demonstrators to downtown Boise on Saturday, May 2. Offering peace signs and garnering many supportive car honks, the marchers moved slowly under scattered showers along Capitol Boulevard to the front lawn of the Idaho Legislature.

Speakers addressed the mass on the grass under the watch of a Capitol Annex camera and a few security guards. Boise police did not engage the pungent assembly.

Rev. Levon Lion opened with a plea for support of religious cannabis use. He mentioned his organization, The Church of Cognitive Therapy, and touted the Omega-3 in edible hemp seeds, which he offered for tasting. Positioned in front of a “CREATE NEW JOBS” sign, he also spoke about hemp’s industrial value for paper, plastic, fiber and fuel.

Then Ryan Davidson, a “Ron Paul Republican” and marijuana activist from Garden City, announced through the bullhorn that Moscow Rep. Tom Trail plans to introduce a medical marijuana bill next year.

With public perceptions of marijuana prohibition shifting nationwide, in particular among traditionally anti-drug Republicans and security officials, Idaho could join the number of states loosening drug regulations. In 2006, then-gubernatorial candidate Butch Otter told Reason Magazine, “I still support medical marijuana,” though he told BW last week that he did not think Idaho would ever legalize and that he was not “desperate” enough for new revenue to pursue it. The Idaho Republican Party debated legalization last year, the citizens of Hailey voted twice in favor of three different cannabis initiatives, and budget woes have lawmakers scrambling for new sources of revenue.

Trail says there is currently no way to track the amount of marijuana grown in Idaho. California’s annual marijuana yield is often valued at $14 billion, nearly double the value of the state’s vegetable and grape crops combined. And the Web site marijuanalobby.org estimates that Idaho could net $12.4 million in new revenue from an 8 percent tax on medicinal marijuana and license fees.

Since 1996, voters have favored ballot initiatives removing criminal penalties for growing or possessing medical marijuana in Alaska, California, Colorado, Washington, D.C., Maine, Montana, Nevada, Oregon and Washington. State legislators in Hawaii, New Mexico, Rhode Island and Vermont have passed medical marijuana laws. On Nov. 4, Michigan became the 13th medical marijuana state and Massachusetts’ voters decriminalized personal possession.

Though he often votes with Democrats, Trail’s party affiliation and tenure in the Legislature have afforded him chairmanship of the Agricultural Affairs Committee. After three previous tries to allow growing industrial hemp in Idaho, Trail has shifted his focus to medical marijuana, which, as his bill posits, “humanitarian compassion necessitates” for sick constituents.

Trail’s draft bill seeks protection for qualified patients to smoke marijuana, and for designated providers and licensed physicians to grow and possess medical marijuana. Nonmedical acquisition, possession, manufacture, sale or use would remain illegal. The state would not be liable for ill effects of medical use and patients would be limited to 60-day supplies.

Sitting at his corner cubicle in the temporary Chairmen’s Suite before the close of the 2009 legislative session, the soft-spoken Trail described the plight of Moscow residents forced by Idaho law to travel to doctors in Washington, and then risk traveling back across state lines in possession of illegal medicine. Less than 3 ounces is punishable by up to one year in jail and a fine up to $1,000. More than 3 ounces is a felony, five years and a fine up to $10,000.

It is a touchy subject for young voters, sick patients and several doctors who support Trail’s work because most feel they must remain anonymous. One Moscow-area doctor wrote a personal letter to Trail, arguing that any legislation is better than none.

The question now is whether Trail and the movement can convince state legislators to define and protect medical use of marijuana.

The Marijuana Policy Project, a fast-growing drug reform group, does not expect medical marijuana dispensaries to be politically viable in Idaho, and the Moscow doctor is concerned the current draft of Trail’s bill would limit the ability for “procuring medical marijuana for the patient who is not botanically gifted. Many appropriate patients are too sick to grow their own.”

In November 2008, Trail requested an opinion from the Idaho Attorney General’s Office on an early draft of his medical marijuana legislation. Deputy Attorney General William A. von Tagen responded in December 2008 with a preliminary opinion concluding that Trail’s bill would be pre-empted by federal law. The bill “would most likely be found to be in conflict with the federal Controlled Substances Act,” von Tagen wrote.

American marijuana prohibition began in 1937. Since its heyday in 1970, the federal government has defined marijuana as having a high potential for abuse and no currently accepted medical use in treatment.

Yet, the American Academy of Family Physicians and half a dozen other national health organizations support access to cannabis for treatment of chemotherapy, AIDS, multiple sclerosis, Lou Gehrig’s Disease, Crohn’s Disease, glaucoma, anorexia, migraines, menstrual pain and other conditions. According to the Centers for Disease Control, annual deaths from cigarettes total 438,000. Alcohol deaths total 21,000. Marijuana deaths are zero.

In June 2008, the Idaho Republican platform committee considered making marijuana legal. Then a resolution surfaced to keep it illegal and use the full weight of the law to enforce prohibition.

“I was part of a group who said we should not treat them as criminals,” Rep. Steven Thayn said. “I got ribbed for opposing the anti-marijuana resolution, but not too much. I’m LDS, so I don’t drink alcohol or use any illegal drugs. It is certainly not something I’m trying to be out front on. I don’t think Idaho is ready.”

The final Idaho Republican platform adopted June 14, 2008, states, “We call upon our national, state and local leaders to refocus efforts in the war on drugs. We support creative alternative sentencing, such as drug courts, and treatment for non-violent offenders.”

Still, the GOP-dominated Idaho Legislature voted this year to cut $2.1 million for statewide substance abuse treatment.

Despite the opinion of the AG’s office, other states are not waiting for a change in federal law before expanding access to marijuana. Roughly 21,000 Oregonians now have cards authorizing medicinal use, according to the Oregon Department of Human Services. About 200,000 Californians have medical access.

According to a recent National Public Radio report, medical marijuana produced more than $100 million in tax revenue for the state of California in 2007.

On a much smaller scale, Nevada charges patients $50 for state ID application materials and then another $150 for processing. Colorado charges patients $90 to apply to their program. New Mexico has finalized regulations for state-licensed, nonprofit medical marijuana providers, making it the first state to do so.

Harvard economist Jeffrey Miron published a study reporting decriminalization would lead to a $29 million net improvement in the budget of Massachusetts by reducing expenditures on arrests.

“Decrim really has no effect on the number of prosecutions or number of prisoners,” Miron said. “The charges for which decrim might have been relevant do not lead to trials or jail time.”

In 2007, a record 872,000 Americans were arrested on suspicion of charges related to the plant, 89 percent for possession alone, according to the FBI. A new report from the University of Washington Law School* points out marijuana arrests accounted for nearly all of the increase in drug arrests from 1991 to 2005.

From 2005 to 2007, Idaho State Police arrests involving seizure of marijuana increased from 3,202 to 4,030.

Though Trail is not angling for an economic boon to the state, he may be successful in Idaho because of the Republican compassion platform, the states’ rights argument and the potential savings to the state. Texas Republican Rep. Ron Paul and Massachusetts Democratic Rep. Barney Frank do not agree on much else, but they agree the drug war is a failure.

The sour economy has even opened doors in the broadcast media that have been historically closed to the National Organization for the Reform of Marijuana Laws. NORML has discovered for the first time that it can purchase commercial packages on television networks including Animal Planet, CNN, ESPN, MSNBC, MTV and the Weather Channel for about 8 cents per 30-second ad.

One key objective for reform advocates is to help voters distinguish between lowest police priority (passed in Missoula County, Mont.), decriminalization (passed statewide in Massachusetts), and legalization and taxation (proposed in California for the first time this year).

In Idaho, it looks like the fight has begun with medical use. Davidson calls religious conservatives like Thayn brave.

“There’s a lot of pressure in that community not to be soft on drugs, and that’s why it won’t get legalized anytime soon. It’s also part of the position on hemp. You’ve got a large contingent that it may give the wrong impression to kids,” he said.

Steve D’Avanzo, owner of Treasure Valley Smoke Shop, doesn’t think he will be selling marijuana any time in the foreseeable future. “I’m sure that if Idaho ever legalized marijuana, they would have some sort of state store to dispense it,” he said. “I don’t think it would be something they would introduce to the retail market.”

Davidson also expressed skepticism about the political process in Idaho. “Butch was taking principled stands on stuff, like the Patriot Act. When he voted against it, he was like a hero, but now everyone feels like he’s kind of a sellout … I assume if the Legislature passed it, he would sign it, but nothing is about what you believe in. Are you strong enough to risk donors to do what you believe in?”

Delawareans afflicted with a variety of chronic and painful conditions would be able to legally use medical marijuana to ease their suffering under a bill now under consideration in the Delaware State Senate.

Sen. Margaret Rose Henry (D-Wilmington East), said her bill isn’t an outright decriminalization of marijuana and is aimed at balancing compassion for the sick with maintaining tight controls on access and the amount of marijuana a person can have.

“Modern science shows us that marijuana can have beneficial effects for people suffering from a number of conditions including cancer, multiple sclerosis, glaucoma and HIV-AIDS,” Henry said. “While we don’t want to encourage the use of marijuana as a recreational drug, it makes no sense at all to deny the comfort it can give to people suffering from truly debilitating and painful diseases.”

If passed, Henry’s bill would:

• Limit patients to six ounces of marijuana a month.
• Require patients, people designated as caregivers and personnel at the “Compassion Care Centers” where pot could be distributed to have state issued ID cards authorizing their ability to access marijuana. The non-profit centers could not be operated within 500 feet of an existing public or private school.
• Require that marijuana be cultivated in enclosed, locked facilities with security systems to prevent theft.
• Ban employers from firing an employee receiving medical marijuana if they fail a drug screening. However, employees could be fired for working under the influence of marijuana.
• Prohibit the use of marijuana in public places, on public transportation, in schools and in prison.

Dr. John Goodill, chief of pain and palliative medicine at Christiana Care, said he supports Henry’s bill because it’s based on a proven model that’s produced good results for patients.

“This bill follows a model that has worked well in other states to date,” Goodill said.  “I think the medical evidence is compelling enough to add it to the list of options for relieving suffering in people living with serious illness and chronic pain.”

Joe Scarborough of Wilmington has used marijuana to ease the side effects of the drugs he takes to combat the effects of AIDS and to ease the pain in his leg and foot from nerve damage caused when a cancerous tumor was removed from his back. He praised Henry for taking on the issue and focusing it on using marijuana for medicinal purposes, instead of pushing for options, such as blanket decriminalization.

“Maybe, in a perfect world, you’d discuss total decriminalization, but I think Sen. Henry’s approach – just focusing on the people who can be helped by medical marijuana – is the right one,” Scarborough said. “I can tell you that, in my case, smoking marijuana has helped with the pain and nausea associated with the drugs I take for AIDS as well as chemotherapy and it has helped with pain caused by my nerve damage.”

The House today voted 63 to 5 to approve legislation to allow the creation of compassion centers to dispense marijuana to patients in the state’s medical marijuana program.

If the legislation (2009-H 5359A), which is sponsored by Rep. Thomas C. Slater (D-Dist. 10, Providence), is enacted, Rhode Island would join California and New Mexico as the only states that allow medical marijuana dispensaries.

The passage comes on the heels of the Senate passage on April 29 of similar legislation (2009-S 0185aa) sponsored by Sen. Rhoda E. Perry (D-Dist. 3, Providence). Both she and Representative Slater were also the sponsors of the legislation that created Rhode Island’s medical marijuana law in 2006. Thirteen states in total allow the medicinal use of marijuana.

Representative Slater said compassion centers would safely and sensibly address a major problem in the state’s medical marijuana law: Patients have no safe, legal way to obtain marijuana, and must turn to the streets for it. Patients who testified at committee hearings told of being robbed and terrified while attempting to find marijuana on the streets.

“We recognized when we created the medical marijuana program that marijuana has a legitimate medical application, and that patients should have access to it if they need it. But we forced them to deal with criminals in order to get it. We’re talking about very sick people, and they shouldn’t have to put themselves at risk to get their medicine,” said Representative Slater.

The bill amends the original medical marijuana act to create nonprofit compassion centers that would be registered by the Department of Health to distribute marijuana or related items to people registered with the state’s medical marijuana program. The bill sets a limit of three compassion centers statewide.

Representative Slater and Senator Perry sponsored similar legislation, which passed the Senate but died in committee in the House amid concerns that the federal government might raid the centers because federal law prohibits the distribution of marijuana. Instead, both chambers passed a bill, which was later vetoed by the governor, to study the issue.

However, with the change in the federal administration, the sponsors believe the climate has changed for the bill. Attorney General Eric Holder Jr. has stated that the federal government will no longer prosecute dispensaries for patients in states that allow them.

“Without the threat of federal raids, there’s no practical reason not to develop a safe way for patients to access this drug. When we recognize that patients need marijuana to ease their pain and the federal government isn’t standing in the way, it’s cruel to refuse to allow them a safe means to get it,” said Representative Slater, who added that he hopes there would  be enough support for the legislation to override a veto if necessary. The Senate passed Senator Perry’s version of the bill with a 35-to-2 vote.

The General Assembly overrode a gubernatorial veto to create the state’s medical marijuana program in January 2006. The bill was the result of years of effort by Representative Slater and Senator Perry, and it was a very personal campaign for both. Representative Slater has been diagnosed with two types of cancer and is currently undergoing treatment. He is one of four of the six siblings in his family with the disease and lost his father, brother and uncle to cancer.

Senator Perry’s nephew, Edward O. Hawkins, died four years ago after a long battle with AIDS. As Hawkins suffered and wasted away in his final months, his family offered to get him marijuana to ease his pain and nausea, but he refused for fear of arrest.

In honor of their personal crusades to make marijuana treatment available to the suffering, the General Assembly named the law the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act.

“If California wants to legalize it, let ‘em legalize it,” Paul told host Richard Greene on Air America’s “Hollywood CLOUT!” program.

He said that he believes that the U.S. Constitution gives the fifty states the right to legalize hemp production or marijuana. He said the issue was a matter of personal liberty but added that drug users should not be entitled to government-funded treatment if they abuse legalized drugs.

“If drugs are legal and people misuse them, then they do it at their own risk,” he said.

Bottom line, said Paul: “I do trust individuals to make their own decisions.”

Listen to the full interview below:

David Clark looks pretty normal.  His smile is soft, his eyes are friendly, his voice is measured and his goatee is trimmed.

He may be a radical but he certainly isn’t wide-eyed.

The Sugar Hill lawyer is the Georgia face of a growing national movement to make marijuana legal.  And if he can’t make it legal, then at least wants it viewed as no worse than breaking the speed limit.

And while many Georgians may view that as the latest example of liberalism run amuck, for Clark and his allies, it is the marijuana laws that are crazy.

I think we would be a lot better off if marijuana was the drug of choice rather than alcohol,” he said.  “There would be a lot less violence, a lot fewer traffic fatalities and people wouldn’t be ruining their lives…  .  Marijuana is a wonderful drug.”

Clark, 49, is the executive director of the state chapter of NORML — The National Organization to Reform Marijuana Laws — which was incorporated last month to make state laws more bud friendly.  The organization is officially against minors smoking pot.

He notes that national polls show growing support for legalization and a majority of Americans support making marijuana available for medical treatment.  Last week, California Gov.  Arnold Schwarzenegger urged a study on legalizing pot.

Look, we have a black president and gay marriage is legal in Iowa,” Clark said.  “Anything is possible.”

Clark doesn’t see the legislature legalizing recreational use — “This is Georgia” — but he does hold out hope for medicinal use and for decreasing the penalties, which could lead to wider legalization.

At least 13 states — from Alaska to Vermont — have legalized marijuana for medical use, which is still a violation of federal law, although some people are skeptical if it is being prescribed legitimately.

Jack Killorin, director of a federally funded task force that targets drug trafficking in the Atlanta area, said many of the prescriptions for marijuana — said to be helpful in treating glaucoma and for increasing the appetite of AIDS patients — were suspect.

There seems to be a great deal of chicanery going on — I’ve got a hang nail, you need about eight grams a day,” said Killorin.

Atlanta Police Sgt.  Scott Krehir said officers often turn a blind eye to marijuana use unless it creates a problem in public.  Officers often view it as largely harmless and see more problems with alcohol, he said.

Officers are given discretion,” said Krehir, a police union chapter president.  “It is like if you stopped somebody who was walking to a Braves game with a beer in his hand.  That is illegal but do I put that person in jail?”

But people do go to jail for simple possession, either for a misdemeanor or for a felony, if the amount is more than a ounce.  Clark said the current laws only underscore the unfairness and hypocrisy of a public policy that largely tolerates marijuana use but sends some people to jail while others are let go.

Right now, fines for marijuana possession can range from hundreds to thousands of dollars.  In some jurisdictions, possessing relatively small amounts can lead to jail time, said Bruce Harvey, a defense lawyer who handles many drug cases.

If a person is arrested with more than an ounce, it will mean an felony indictment, the lawyer said.

I think those attitudes are changing,” Harvey said.  “A lot of the jurors I have experienced even in rural counties say they don’t believe small amounts of marijuana should be illegal.”

That may be because so many people have smoked marijuana — or know people who have smoked it.  A 2007 U.S.  Department of Health and Human Services study found that 4.6 million Americans 35 and older said they had used the drug in the past month while 62 million said they used it in their lifetime.

Rick Malone, executive director of the Prosecuting Attorney’s Council of Georgia, said few prosecutors would oppose decriminalization but suspected few legislators would want to take on the issue.

You’re not going to get anyone to repeal the marijuana laws because they don’t want the political heat but if you got them in a back room and asked about their use in their youth, you might be surprised at the result,” Malone said.  “When I was a district attorney in South Georgia, I asked job applicants about their past use of controlled substances.  I soon quit asking that question.  I wasn’t going to find too many people who had gone through high school, college and law school who hadn’t puffed on a marijuana cigarette.”

The most recent state controversy about marijuana came last month at the University of Georgia, when a student chapter of NORML was placed on probation for selling shirts bearing the image of a bulldog smoking a joint while reading a book on human rights.

The university claimed copyright infringement.  The student group is appealing.

So far the state chapter is small — just over 50 people — but Clark claims it growing each week just by word of mouth.  Meanwhile, he said, he will continue to respect Georgia laws and reserve his cannabis indulgence for trips to the Netherlands, where it is legal, or to the Caribbean, where police seldom make arrests.

I started smoking pot as a teenager, when I was 14 years old,” Clark said.  “I don’t smoke marijuana very much today.  I just feel strongly that there shouldn’t be laws against it.”

Gov. Arnold Schwarzenegger said Tuesday that the time is right to debate legalizing marijuana for recreational use in California.

The governor’s comments were made as support grows nationwide for relaxing pot laws and only days after a poll found that for the first time a majority of California voters back legal marijuana. Also, a San Francisco legislator has proposed regulating and taxing marijuana to bring the state as much as $1.3 billion a year in extra revenue.

Schwarzenegger was cautious when answering a reporter’s question Tuesday about whether the state should regulate and tax the substance, saying it is not time to go that far.

But, he said: “I think it’s time for debate. I think all of those ideas of creating extra revenues – I’m always for an open debate on it.”

The governor said California should look to the experiences of other nations around the world in relaxing laws on marijuana.

Assemblyman Tom Ammiano, D-San Francisco, has introduced a bill to regulate marijuana like alcohol, with people over 21 years old allowed to grow, buy, sell and possess cannabis – all of which are barred by federal law.

California voters in 1996 legalized marijuana for medical use with permission from a physician.

Ammiano said he was pleased the governor is “open-minded” on the issue and added that he was sure the two could “hash it out.”

Under Ammiano’s proposal, the state would impose a $50-an-ounce levy on sales of marijuana, which would boost state revenues by about $1.3 billion a year, according to an analysis by the State Board of Equalization. Betty Yee of San Francisco, who chairs the Board of Equalization, supports the measure.

“This has never just been about money,” said Ammiano, who has long supported reforming marijuana laws. “It’s also about the failure of the war on drugs and implementing a more enlightened policy. I’ve always anticipated that there could be a perfect storm of political will and public support, and obviously the federal policies are leaning more toward states’ rights.”

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The following is based on a talk given at the Free State Project’s Liberty Forum in Nashua, New Hampshire, on Friday, March 6, 2009.

The Tenth Amendment says “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.” This effectively means that if the Constitution does not grant the power to the federal government over something, then it is for the states and people to decide. Some people here would say this is the most important amendment. If the federal government obeyed it, the entire drug war as we know it would be impossible.

In 1909, Hamilton Wright, U.S. official to the Shanghai Opium Commission, complained that the Constitution was “constantly getting in the way” of his drug war ambitions. Indeed, in domestic politics, there is no Constitutional authorization for a federal drug war whatever. Without a grant of power, the U.S. government is supposed to butt out.

In 1914, Woodrow Wilson signed the Harrison Narcotic Act into law. There was no constitutional basis for this, but at least by the time alcohol prohibition came around, it was recognized that the federal government would need constitutional authority to ban liquor. They passed the 18^th Amendment and repealed the disaster of alcohol prohibition with the 21^st amendment.

By 1937, however, there was no more such deference to Constitutional procedure. That year, Franklin Roosevelt signed the Marijuana Tax Act into law, effectively banning marijuana at the federal level. All the major federal drug laws since then had no Constitutional basis, and all of them seemed to come with general expansions of federal power. Just as Wilson’s ban on heroin and regulation of cocaine came during the activist Progressive Era and marijuana prohibition was part of FDR’s New Deal, the next major wave of federal drug law came in the 1960s, during the Great Society, and culminated in the 1970 Controlled Substances Act just as Nixon was continuing LBJ’s policies of guns and butter.

This relates to the medical marijuana debates since the 1990s. When states began allowing medicinal pot, Bill Clinton and George W. Bush both cracked down on their dispensaries, and many advocates of states’ rights decried this violation of federalism. A case went to the Supreme Court on 10^th Amendment grounds and all the liberals on the court, all favoring a federal government with few limits on its power, upheld Bush’s raids. Three conservatives dissented, including Clarence Thomas, arguing that the federal government had no authority through the commerce clause to interfere with California’s medical marijuana policy.

If Obama indeed stops the medical marijuana raids, it will probably not be because, as his spokesman says, he believes “that federal resources should not be used to circumvent state laws.” On general questions of policy, including the drug war, Obama and most liberals favor federal supremacy. If California goes through with legalizing marijuana outright, will Obama really do nothing about it? Will the administration actually find ways to crack down on medical marijuana while claiming the operations it’s targeting are not for medical use – as it has done before? Is it possible that Obama, not believing in the constitutional principles at stake, will accelerate other aspects of the drug war?

The Tenth Amendment alone invalidates the federal drug war, and so too does the next one down.

The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This means that just because a personal right is not specifically mentioned does not mean the federal government can infringe upon it. Certainly the rights to use and sell drugs are being attacked in this very way.

And in moral terms, this is what the drug war means. It is the denial of self-ownership. Someone who can’t decide what to put in himself does not own himself. The logic of the drug war is that the government owns you.

We look at all the rights trampled in the name of the drug war and we see how all rights are connected. People are denied the right to self-medicate and take the treatment they desire. Not just in regard to illegal drugs either, but those that are regulated.

The Food and Drug Administration is tied at the hip to the Drug Enforcement Administration. The pharmaceutical interests who control federal prescription drug policy have a stake in maintaining a control on what drugs people can do. The FDA, by keeping life-saving drugs off the market, has forced tens and tens of thousand Americans to die prematurely. Mary Ruwart puts the number in the millions.

What would amuse me if it were not tragic is that so many liberals defend the FDA even as they question the drug war. But if you have a right to do drugs to get high, you surely also have a right to do any drug that you think might save your life. Medical freedom in its true sense is totally impossible without drug freedom.

Because of the drug war, the right to travel is impeded, and the right to have and transfer money. Laws against money laundering – itself a victimless crime – have sprung up almost entirely because of the drug war. And anyone who believes that the right to practice free enterprise is important and guaranteed by the Ninth Amendment must necessarily oppose the drug war, which violates free market principles in a million ways.

Next on our list is the Eighth Amendment, which guarantees that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Well surely any punishment is cruel for a victimless crime. Conservatives might say this is a liberal reading of the Amendment. But at the time the Bill of Rights was adopted, prisons as we know them hardly existed, and the notion of imprisoning someone for ten years for growing hemp, on which the Constitution was drafted, would have been seen as quite cruel and quite unusual. In the 1970s and 1980s, Congress passed mandatory minimum laws which reduce the discretion of judges in handing out sentences – almost all such federally determined sentences are for drugs or guns.

The average sentence in federal prison for drug trafficking is longer than for sexual abuse. The burgeoning prison state is one of the most horrifying features of modern American history, with the drug war playing a huge part. About one in four or five Americans prisoners are there for non-violent drug offenses – acts that were totally legal in the nineteenth century. Before Reagan stepped up the drug war, there were half a million Americans in prison or jail, and another 1.5 million on parole or probation. There are now more than two million behind bars and seven million total in the correctional system. Prisons grew by 500 percent from 1982 to 2000 in my state of California.

One out of four or five prisoners are there for drugs alone. And for their non-crime, they are sentenced to a personal totalitarianism: Gang violence, an alarming frequency of prison rape, beatings and sometimes death. Americans by the hundreds of thousands who have never raised a finger against anyone are in constant fear of being abused and turned into slaves by their cellmates. How any American can think this is in any way consistent with civilized society boggles the mind.

Bail is often ridiculously high for drug war victims – $1 million or more. The advent of asset forfeiture – whereby the government confiscates your property and essentially accuses it of being guilty of a civil offense – has become an effective way to circumvent the “excessive fines” clause.

What about the Seventh Amendment? It reads: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

I mentioned civil asset forfeiture. It is important to recognize that there is no criminal hearing for the vast majority of forfeiture victims. The property is seized through civil litigation. But since the property itself, and not the owner, is on trial, the Bill of Rights offers no protection. There’s no right to a trial. If a person wants to reclaim his confiscated property, he must ask for a trial. If the court rules that the property be returned, the government can ask for another one, or merely make return of the property contingent upon the victim paying tens of thousands of dollars in fines.

You might be a charter pilot who has his plane taken as part of a drug investigation, and be unable to pay the six grand to get your plane back after being bankrupted by the legal system. This happened to Billy Munnerlyn in the early 1990s. You could be the wrong color or have the wrong amount of cash on you and lose it all to confiscators who get to keep a cut of what they steal.

One point of the Seventh Amendment was to protect the rights of Americans to sue government officials for wrongdoing, and have a fair trial – not the type of mock trial the Founders saw used by the British Crown to let their officials off easy. The drug war has turned this entire idea on its head. Now the government can just take your property without charging you and all you can do is hope that it lets you make your case in a fixed sham proceeding that you are innocent.

The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

For standard crimes like murder, theft, rape and the like, it is perhaps possible to have trials reasonably available to every suspect. But there are simply too many drug offenders for this and no victims to serve as reliable witnesses. So the standard of evidence has been lowered to the point where the mere existence of enough cash and a cop’s say-so is enough to convict.

What’s more, defense attorneys are often burdened with a hundred clients at once, so they must prioritize and leave those who are fated to only a year in prison to lesser hearings. Some judges have even refused to assign public defenders in drug cases.

A dangerous alternative to the trial system is the “drug court,” wrongly touted by some reformers, including the Obama administration. In Obama and Biden’s “Blueprint for Change” they propose to “Expand Use of Drug Courts” to “give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.”

But as Morris Hoffman, a state trial judge in Denver and an adjunct professor of law at the University of Colorado, warned at the USA Today blog in October last year:

[It’s] not just that drug courts don’t work, or don’t work well. They have the perverse effect of sending more drug defendants to prison, because their poor treatment results get swamped by an increase in the number of drug arrests. By virtue of a phenomenon social scientists call “net-widening,” the very existence of drug courts stimulates drug arrests.

Police are no longer arresting criminals, they are trolling for patients. Denver’s drug arrests almost tripled in the two years after we began our drug court. At the end of those two years, we were sending almost twice the number of drug defendants to prison than we did before drug court.

Attempting to win the drug war, even in a more progressive sense, is thus no substitute for abandoning it altogether. The only change I can believe we’ll see under Obama is more erosion of the Sixth Amendment.

We’re just getting started. The Fifth Amendment states: “No person shall be. . . subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Mandatory drug testing can be seen as self-incrimination, as soon as the results are used in criminal prosecution. Civil asset forfeiture has allowed for the deprivation of life and liberty without due process, and also for the effective phenomenon of double jeopardy, as people are punished both in the civil and criminal systems.

The Psychotropic Substances Act of 1978 expanded the use of forfeiture to include any property connected to the drug crime in any manner. An early 1990s study estimated that 80% of people who lost their property to civil asset forfeiture were never charged with a crime.

We often hear of money being confiscated for drug residue, which can be found on over 90% of the cash in circulation. We hear of people losing their homes, cars, boats and businesses because of the presence of marijuana seeds. The drive to get loot, some of which police get to personally keep, has even led to some deaths, as was the case with Donald Scott, a California rancher gunned down because bureaucrats wanted to seize his land on which they claimed they found some seeds. Michael Bradbury, the Ventura County DA, said that the police raid was “motivated at least in part, by a desire to seize and forfeit the ranch for the government… [The] search warrant became Donald Scott’s death warrant.”

I shouldn’t even have to discuss how the Fourth Amendment has been compromised.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Where to begin? Warrants have become a mere bureaucratic technicality, rubberstamped or often neglected altogether in the pursuit of drug offenders. No-knock raids have become a commonplace in modern American life. 92-year-old women are murdered and have drugs planted on them. Men who shoot no-knock invaders are sentenced to death, and if they’re lucky, have their sentences reduced to life – this happened to Cory Maye in Mississippi. Children are shot in the back. Family pets are killed by laughing officers as they break into homes searching for drugs.

With a real crime, it is often possible to have an “Oath or affirmation” backing the warrant, which can actually “describe the persons or things to be seized.” In a murder case, a warrant can describe a bloody knife. Drug war warrants are typically too vague to pass constitutional muster. Mere suspicion that some law is being broken is often enough.

The courts have ruled that if the government tries to arrest you when you’re in public, and you escape into your home, they can now search the home without a warrant. As for automobiles, drug war roadblocks have erased the Fourth Amendment concerning cars, which are now treated as the property of the state.

The Supreme Court recently ruled that police may prevent people from entering their own homes while the police apply for a warrant. These abuses are often glorified on television as the necessary implements to catch vicious criminals, but they originated with, and are principally used for, the war on drugs.

Americans tend to look at the Third Amendment as an anachronism. “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Surely this hasn’t been touched by prohibition, has it?

Even by a very narrow reading, I believe it has. In one instance, in 1997, 40 members of the Army National Guard moved into the Las Palmas Housing Project in Puerto Rico to search for drugs. Years later, there were hundreds there.

More broadly, the entire spirit of the Third Amendment has been trounced. The point of the amendment was to prevent the abuses seen with the British Quartering Act, to protect Americans from having to quarter soldiers – to support them, even financially – except at wartime when and through legal means. But all around us, we have seen the police militarized in the name of the drug war.

Some conservatives objected when Bush modified the insurrection act and amassed more presidential power to call up the National Guard on his own say-so. But this trend began before 9/11. In a hearing on the drug war in 1994, then Congressman Chuck Schumer said, “The National Guard is a powerful, ready-made fighting force. Redefining its role in the post Cold War era presents exciting possibilities in the war against crime.”

Also troubling have been the attempts to weaken Posse Comitatus, which since Reconstruction has forbade the use of the military in civilian law enforcement. But before the war on terrorism, there was the drug-war loophole. In the 1980s, Posse Comitatus was amended to allow for military-police cooperation in drug interdiction. Whereas the military was understood to be inappropriate for the enforcement of federal civil rights during Reconstruction, it was supposedly okay for the drug war. This precedent culminated in the largest massacre of American civilians by their own government since Wounded Knee.

Why was the military involved in Waco sixteen years ago? Because the government decided to treat their upcoming publicity-stunt raid as a drug measure. They claimed the Branch Davidians had a meth lab. That’s how they got the warrant and military involved. That’s how they got the military weapons. It was only later that the excuse shifted to child abuse or illegal gun ownership.

Which brings us to the Second Amendment. One of the terrible tragedies of our time is that more people do not understand the connection between the drug war and gun rights.

As soon as violating people’s rights to find drugs became excusable, the crusade against private gun ownership got a big boost. Both concern the ownership of inanimate objects. As wars on possession crimes, both government crusades rely on the same kinds of dirty tactics, the punishment of minor offenders with disproportionately long sentences as a deterrent, the erosion of due process, privacy and the rights of the accused.

The relationship between the drug war and violent crime has been documented. The spike in violent crime following prohibition has traditionally led to more severe enforcement of gun laws. Both gun control and the drug war lead to violent black markets, and thus more state power in a spiraling vicious cycle of mutual reinforcement.

It was, after all, the bootlegging gangs that emerged out of alcohol prohibition that served as the inspiration for the first major federal gun law: The National Firearms Act of 1934. A year after the Marijuana Tax Act of 1937, the Federal Firearms Act of 1938 passed on a similarly used an abusive interpretation of the Commerce Clause.

Moreover, just as with terrorism, the two issues became linked in law enforcement. Federal law mandates additional penalties if drug dealers are caught in mere possession of a firearm. Nobody wants to stick up for the rights of drug dealers to keep and bear arms. But so long as they are violating no one’s rights, they should be left in peace. There are many legitimate reasons, from a moral perspective, that a dealer would want to defend himself.

Many non-violent drug convicts are automatically denied the right to bear arms. This is a serious and grave attack on the human rights of drug convicts who have already paid a debt to society that they didn’t even owe.

The lesson is clear: If you want your right to self-defense protected, you must oppose drug prohibition.

Last but not least is the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For years, politicians have wanted to censor us, using the drug war as an excuse. Probably the most notable example was Senators Feinstein and Hatch’s proposed Methamphetamine Anti-Proliferation Act, which in its original language would have outlawed speech that advocated drug use or production and cracked down on websites that merely linked to sites that sold drug paraphernalia. Then there is the more general chilling effect of students being harassed in public schools for outwardly advocating drug use or legalization.

Here in New Hampshire, Ian Freeman has been threatened with criminal penalties for the act of advocating drug possession.

As for religious liberty, American Indians have long used hallucinogens as religious rites, and have risked penalties under federal law for the peaceful exercise of religion. This brings us to a fundamental incompatibility between the First Amendment and the drug war.

Under the American Indian Religious Freedom Restoration Act of 1994, American Indians can use peyote because it is part of their religion. But if something is peaceful, anyone should be allowed to do it, whether it is recognized by the government as religious or not. For peyote users to be jailed because they do not believe in its spiritual dimension is a de facto official government endorsement and granted privilege for some religious groups. If it can conceivably be allowed for the religious, it must constitutionally be allowed to everyone. Yet for peyote users to be jailed despite their religion is a violation of their religious liberty. The only way to reconcile religious liberty with federal drug law is to abolish it altogether.

Thus we see that Ludwig von Mises was hardly off the mark. The entire Bill of Rights has been shredded in the drug war. In Constitutional terms, “If one abolishes man’s freedom to determine his own consumption,” one does indeed “take all freedoms away.” With even the precious First Amendment battered, Mises was right that the drug warriors “unwittingly support the case of censorship, inquisition, religious intolerance, and the persecution of dissenters.”

The alternative, say the drug warriors, would be worse. They persist in their claims that we are utopians and unrealistic. But it is their vision of a drug-free America that is unrealistic. America’s prisons are constantly monitored and prisoners have very little of what we would call civil liberty, yet drugs flow throughout the system. America itself could become one big drug prison and their vision would be no closer to being obtained.

Copyright © 2009 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.