“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.

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.

On Friday night the Marijuana Policy Project reported:

“Although there are still about 10,000 votes left to be counted, our lead of more than 4,000 votes makes us 100 percent confident in announcing…

Arizona is now the 15th medical marijuana state!

This fall, more than 1.7 million Arizona voters mailed in ballots and turned out to support Proposition 203, a ballot initiative that would end the arrest and imprisonment of patients for following their doctor’s advice. While it seemed as if the initiative had fallen short on election night, it garnered enough support from late mail-in votes and provisional ballots to produce a victory!”

Medical marijuana is controversial, no doubt, especially among social conservatives, of which I am one. But regardless of whether or not one supports the legalization of medical marijuana in one’s own state, or whatever a person’s opinion of its efficacy as a medicine might be, one thing should be uncontroversial:

The Tenth Amendment prohibits the federal government from interfering with a state’s decision to either allow or prohibit the cultivation, distribution or use of marijuana within its own boundaries (case law involving the Commerce Clause notwithstanding). Under the Constitution, that decision is reserved to the states or the people. The regulation of intrastate commerce, as it pertains to marijuana, is simply outside the scope of federal power. The fact that our overlords in Washington, DC and their minions throughout the union have ignored the Tenth Amendment for decades, is irrelevant.

But medical marijuana isn’t the only issue over which the people of Arizona have invoked their sovereign powers, guaranteed by the Tenth Amendment. They also passed Prop. 106 in order to amended the Arizona State Constitution, which according to Dr. Eric Novack, Chairman of Arizonans for Health Care Freedom, will do two things:

– One, Prop 106 guarantees that all Arizonans have the right NOT to participate in any health care system or plan without facing a penalty, fine, or tax. Put simply, that means no government-mandated insurance.

– Two, Prop 106 will guarantee that all Arizonans have the right to spend their own money to obtain legal health care services. Second opinions; additional medical treatments; life-saving legal drugs [which now includes marijuana for those whose physician prescribes it]: No government bureaucrat should ever be able to tell you that your life and health are not worth it

Kyrsten Sinema, Assistant House Democratic Leader, sees it differently. In fact she asserted earlier this year that Prop. 106 is actually useless. She wrote:

“Prop. 106 is completely useless because the Supremacy Clause of the U.S. Constitution establishes that laws established by Congress are the supreme law of the land. Through Proposition 106, the state may not tell the federal government what to do.”

Yes, you read that correctly. According to Kyrsten Sinema, federal statutes, not the US Constitution, are the supreme law of the land.

Getting the Supremacy Clause Wrong

As predictable as the sun rising tomorrow in the East, are the arguments that the federal supremacists, opposed to not only Prop. 106, but also those opposed to Prop. 203, will make. At their core, they are essentially identical. They mistakenly assert that federal statutes, rather than the Constitution, are the supreme law of the land. Recall what Kyrsten Sinema wrote:

“..the state may not tell the federal government what to do.”

Prepare yourself for the heavy dose of propaganda you’re about to be subjected to. “States can’t just pick and choose what federal laws they will obey!” and, “federal law trumps state law”, are the sound bites that will be presented to us in a “matter of fact” tone,  over and over again. Someone once said that, “A lie told often enough becomes the truth”. I won’t name names, but the name of the person who said it rhymes with Lenin. And just like Kyrsten Sinema’s argument against Prop. 106, the “federal marijuana laws haven’t been repealed” arguments that will be made against Prop. 203, are based on the same flawed understanding, or misrepresentation of, the Constitution’s Supremacy Clause.

The Supremacy Clause established the following rule:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

So what part of the Supremacy Clause don’t they understand? Where do Kyrsten Sinema and other federal supremacists get it wrong? For starters, they seem to ignore or gloss over the fact that the Constitution is mentioned in the clause first. Robert G. Natelson, a nationally recognized expert on the framing and adoption of the Constitution, explains in chapter three of his book, The Original Constitution: What it Actually Said and Meant:

“The Supremacy Clause thereby described a hierarchy by which state (and federal) judges would prioritize federal and state enactments..The most obvious prescription of the Supremacy Clause was that the Constitution and duly-enacted federal laws and treaties were superior to state constitutions and state laws..The US Constitution was mentioned first—before ‘Laws . . . made in Pursuance thereof’—to indicate that the Constitution was superior to statutes..The Supremacy Clause referred to laws ‘in Pursuance’ of the Constitution but to treaties as ‘made, under the Authority of the United States.’..Thus, state and federal courts were to apply sources of law in the following hierarchy:

Highest: The U.S. Constitution

Next highest: U.S. laws and treaties, duly made within the scope of federal power

Next: State constitutions

Lowest: State laws.

Federal actions taken outside the scope of federal power were not, of course, to be law at all.”

So according to Robert Natelson, state and federal courts were to apply sources of law according to the hierarchy listed above. But what happens when federal courts, even the highest federal court in the land fails to do so? Do the states and the People have any further recourse? Yes we do, and the most appropriate one is called state nullification.

“Unconstitutional Law” is an Oxymoron

Federal actions taken outside the scope of federal power are not laws, they are acts of usurpation. In other words, an unconstitutional federal “law” is no law at all, and the states and their people are not bound to obey them. Whether it’s Prop. 106 (The Arizona Health Insurance Reform Amendment), or Prop. 203 (The Arizona Medical Marijuana Initiative), Arizona is acting well within the scope of its reserved powers when it enacts such laws.

Arizona is not somehow being insubordinate, rather it is our so called federal government that is refusing to subordinate its actions to the Constitution, which is the supreme law of the land. By interposing itself between the people of Arizona and a federal government gone rouge, the 48th state is simply performing what most states (both northern and southern), properly understood to be their duty for almost the first half of American history. The examples, which have involved a multiplicity of issues, ranging from the protection of free speech in the 1790′s, to preventing the unconstitutional kidnapping of blacks by slave hunters in the 1850′s, they are too numerous to cover here in detail.  But I’ll give you this important example.

When representatives from Rhode Island, New Hampshire, Vermont and Massachusetts assembled in 1814 at what is known as the Hartford Convention, in response to the federal government’s unconstitutional conscription plan and other grievances they had, they did not ask the federal government for permission to “opt out” of their conscription plan, neither did they attempt to sue the federal government in federal court, as far as I know.  Rather, they drafted a report and resolutions on their own, without asking permission. They understood that the federal government was their agent, not their master. Let me share with you an excerpt from one of those resolutions adopted by the convention. It reads:

“In case of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of a State and the liberties of the people, it is not only the right, but the duty of such State to interpose its authority for protection in the manner best calculated to secure that end.”

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We don’t necessarily need a convention, like the one convened in Hartford back in 1814, to halt federal acts of usurpation. Fourteen states have already asserted their sovereignty unilaterally, by legalizing medical marijuana in spite of the Supreme Court’s ruling that they may not do so. So far, no one has been run over by a tank. In fact, the federal government has done almost nothing to oppose them. Now it looks like Arizona will be number fifteen.

So thanks for your opinion, Supreme Court…but we’ll be “the decider” when it comes to what kind of health care system we’ll have in Arizona, or if a certain plant, grown and kept within our state, is to be permitted for medicinal use. And whatever we do decide, know that more of us everyday are waking up to the fact that it is the duty of those in our state government to protect the sovereignty of Arizona and to support and defend the Constitution of the United States.

EDITOR’S NOTE: As of 11-14-10, Arizona’s elections office has made it official that Proposition 203 has passed.

CLICK HERE – for the Tenth Amendment Center’s legislative tracking page for state marijuana laws

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.

by Michael Boldin

NOTE:  The following is based off a speech given on 09-04-10 in Fort Worth, Texas.  Michael will be a featured speaker at upcoming Nullify Now! tour stops in Orlando, Chattanooga, Phoenix and Los Angeles.   Get your tickets at http://www.nullifynow.com or by calling 888-71-TICKETS

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There are a few core beliefs that guide me in everything I do as the founder of the Tenth Amendment Center

1. Rights are not “granted” to us by the government – they are ours by our very nature, by our birthright.
2. ALL just political authority is derived from the people – and government exists solely with our consent!
3. We the people of the several states created the federal government – not the other way around!
4. The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government in the Constitution – and nothing more.
5. The People of each State have the sole and exclusive right and power to govern themselves in all areas not delegated to their government.
6. A Government without limits IS A TYRANNY!
7. When Congress enacts laws and regulations that are not made in Pursuance of the powers enumerated in the Constitution, the People are not bound to obey them.

These seven items – are what establish the proper role of government under the constitution. But sadly, an honest reading of the constitution as the founders and ratifiers gave it to us makes clear that MOST of what D.C does today is NOT authorized by the constitution.

Question – What do we do about it?

Do we lobby congress and ask federal politicians to limit federal power?  Do we go to federal courts and ask federal judges to limit federal power?  Do we vote the bums out in the hopes that the new bums will limit their own power?

Thomas Jefferson and James Madison both warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers – that power would endlessly grow…regardless of elections, separation of powers, courts, or other vaunted parts of our system…..

They were right. For a hundred years, we the people have been suing, and marching, and lobbying, and voting the bums out – but yet…year in and year out, government continues to grow and your liberty continues to diminish – and it doesn’t matter who is the president, or what political party controls congress – the growth of power in the federal government never stops.

The problem we face today is about power – and until we address the absolute fact that the federal government has too much power, things will never change.

Question – What do we do about it?

Answer – Jefferson, Madison and others advised us on what we should do when 2 or more branches conspired against the constitution and your liberty….and it’s best described with a few quotes from Jefferson:

“the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government”

But wait – that’s not all. He went on to say that all undelegated powers exercised by the federal government are “unathoritative, void and of no force.” And, that a “nullification of the act is the rightful remedy.”

NEW MOVEMENT

In 2007, Maine…one state rep introduced a non-binding resolution opposing the REAL ID Act

In 2008, two state legislators in Oklahoma introduced a simple non-binding resolution reaffirming the Constitution as defined by the 10th amendment,

In 2009, one state rep in Montana introduced a Firearms Freedom Act, to nullify some federal gun laws and regulations

In 2009, one state rep in AZ introduced a Health Care Freedom Act, effectively banning a national health care plan in the state.

And that’s grown into a nullification movement like this country has never seen –

• Already nearly a dozen states have passed 10th amendment resolutions
• 25 states have stopped the real id act dead in its tracks in most of the country.
• 8 states have passed binding laws nullifying some federal gun laws and regulations in their state – including Wyoming, which included a penalty of a fine and imprisonment for fed agents violating the state law
• And 5 states have already passed laws to nullify federal health care mandates – with more on the way.

The reality is this – when enough people say no to the federal government, and enough states pass laws saying no to the federal government – they will not be able to enforce their unconstitutional mandates on us.

ROSCOE FILBURN

During the Great Depression, while millions of people were out of work or starving, the FDR administration required American farmers to restrict production of wheat in order to raise prices.

As a farmer, Roscoe Filburn was told he could plant a little over 10 acres of wheat, which he did grow and sell on the market. He also decided that it was in his best interest – possibly because he had less revenue due to the production limitations – to plant another 10 or so acres. But, the “excess” wheat grown was used at home to feed his livestock, among other things. He never sold it, so he saw this as being outside the scope of Congressional power to regulate “interstate commerce.”

What did the federal government do? The expected – they ordered Roscoe to destroy his crops and pay a fine. Think about that for a moment and you’ll really understand the evil of having too much power in too few hands. At a time when large numbers of people were starving, these thugs in government forced people to reduce production for the sake of raising prices. From this, it seems clear to me that corporate bailouts have been going on a long, long time in America.

Roscoe sued, and the case went all the way to the Supreme Court. In Wickard v Filburn, the Court ruled against him and the result was that the Federal Government assumed a power that was new in the history of this country. It now had the power to control the growing and consuming of something that never left one’s back yard.

LOST LIBERTY

John Adams, In 1775 he wrote, “liberty once lost, is lost forever.” He went on to explain that when the People allow government to gain power and restrict liberty, it will never voluntarily give that power back. Liberty given up to government power will never be returned to the people without a long and difficult struggle.

If we fast forward to present times, we can see this principle at work.

ANGEL RAICH

In the 1990s, the People of California voted to legalize consumption of marijuana for medicinal purposes. Angel Raich, who has a huge cancerous tumor in her brain was told by her doctor and California law that using marijuana to relieve some of the pain associated with her cancer was acceptable.

The Feds don’t take too kindly to states passing laws in direct contravention to theirs. Marijuana, for example, is illegal on a federal level in all circumstances, and federal agencies have consistently said they don’t recognize state laws. You can probably guess what happened, right?

Federal agents destroyed Angel’s homegrown marijuana plants without much resistance. Like Roscoe before her, Angel sued. The suit went all the way to the Supreme Court, and in Gonzales v Raich, Angel lost. The 2005 ruling made clear that the federal government did not recognize state laws authorizing the use of marijuana – in any situation.

In his dissent, Justice Clarence Thomas gave a stark warning:

“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption…then Congress’ Article I powers…have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of regulating commerce.”

WHAT THE…?

You might be asking, “What’s the point of this?” Well it’s pretty simple. The constitution is not about political parties. It’s not about political ideologies. It’s about liberty. It’s about limiting the federal government to certain enumerated powers so the most difficult and most divisive issues can be dealt with where they belong – close to home.

Even though she lost the case, Angel indicated she’d continue to use marijuana. At the time of the ruling, there were 10 states that had such laws. Not one of them has been repealed. Since then, another 4 states have passed similar laws, and many others are considering them, including South Dakota, Kansas, and New Hampshire.

This is the lesson, the blueprint – the Supreme Court may have an opinion on Obamacare, but let them come and enforce it! They may have an opinion on the EPA and Cap and Trade, but we don’t have to go along with it. And if Texas does what she should be doing – which is following the Constitution every issue, every time, no exceptions, no excuses – she would say no to every federal gun law, she would say no to all the EPA, she would say no to all the Obamacare mandates, and maybe even the marijuana laws too.

The reality is this – we don’t need approval from the federal government to stand up for our rights. We need to stand up for them whether they want us to or not!

LIBERTY

Over the past 2 years, I’ve been interviewed by mainstream media sources literally dozens of times. And whether it’s Fox News, or CNN, or the New York Times, the reporters invariably ask the same question, “What political party do you support?” Each time, I give them the same answer, “The Tenth Amendment Center is a non-partisan think tank that supports the principles of strictly limited constitutional government.”

They always have virtually the same follow up question too – “what about you? As the founder of the Center, what’s your political background, what political party do you support?”

“None,” I tell them. I don’t know if they believe me, but it’s true.

I’m no conservative, and I’m no liberal. I’m not a Democrat or a Republican. And I’m not a green or a libertarian, or a socialist or an anarchist. I’m not even an independent.

All I am is me, and all I want is to live free. Thank you for joining me…

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

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

Just when you thought Arizona couldn’t get any more provocative, or push any more of the federal government’s buttons, it looks like America’s 48th state may actually become the 15th state to adopt another very controversial law!

This proposed law, on the other hand, may actually make some people on the Left, as well as the Right, happy for a change. I have my doubts about whether it will make those who put party above principle, or anyone employed by the U.S. Department of Justice happy, however.

While Arizona was getting tons of media attention related to the passage of its high profile immigration enforcement law, (SB 1070), the grassroots activists that were delivering more than 100 boxes of petitions containing 252,000 signatures to the Arizona Secretary of State’s office received little.

But this week, Fox 11 Arizona’s website reported:

“Secretary of State Ken Bennett’s office on Tuesday certified that organizers of the initiative campaign had turned in enough signatures to get the measure on the ballot.”

What measure is he referring to?

The Medical Marijuana Initiative, of course! The initiative, which Arizona voters will soon have a chance to vote into law this November, would do seven things according to the Arizona Medical Marijuana Policy Project’s website:

• Allow terminally and seriously ill patients who find relief from marijuana to use it with their doctors’ approval.
• Protect these seriously ill patients from arrest and prosecution for the simple act of taking their doctor-recommended medicine.
• Permit qualifying patients or their caregivers to legally purchase their medicine from tightly regulated clinics, as they would any other medicine — so they need not purchase it from the criminal market.
• Permit qualifying patients or their caregivers to cultivate their own marijuana for medical use if a regulated medical marijuana clinic is not located within 25 miles of the qualifying patient.
• Create registry identification cards, so that law enforcement officials could easily tell who was a registered patient, and establish penalties for false statements and fraudulent ID cards.
• Allow patients and their caregivers who are arrested to discuss their medical use in court.
• Keep commonsense restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

The AMMPP, which is a grassroots organization, has been devoted to passing a medical marijuana initiative in Arizona in November 2010. As they explain on their homepage:

“Currently, seriously ill people who use marijuana on the advice of their doctor to treat illnesses such as cancer, AIDS, and multiple sclerosis are subject to arrest and imprisonment, simply for trying to stimulate their appetite or alleviate their pain.”

Objections

People who often dismiss state laws allowing the use of medical marijuana always seem to argue that “federal law trumps state law” and that federal “laws” still prohibit the possession, use, cultivation or distribution of the plant, even for medical purposes.

It’s true that federal “laws” make no exceptions for those who are sick and suffering, and the Feds have claimed universal jurisdiction, even over plants that are grown and consumed by patients in their own home. But I wish more of these critics, (and all Americans for that matter), would take the time to ask the following question:

“Which of the enumerated powers delegated to the federal government under the Constitution gives them the authority to prohibit the cultivation or use of marijuana at all, for any reason?”

It’s a fair question, and I have yet to hear a satisfactory answer to it. Michael Boldin, founder of the Los Angeles based Tenth Amendment Center puts it this way:

“An honest reading of the Constitution with an original understanding of the Founders and Ratifiers makes it quite clear that the federal government has no constitutional authority to override state laws on marijuana. All three branches of the federal government, however, have interpreted (and re-interpreted) the commerce clause of the Constitution to authorize them to engage in this activity, even though there’s supposedly no ‘legal’ commerce in the plant. At best, these arguments are dubious; at worst an intentional attack on the Constitution and your liberty.”

I know it’s difficult for educated, reasonably intelligent people to understand how cultivating, harvesting and consuming a plant, all on one’s own property, is actually in fact, a form of “interstate commerce”. However, that is only because it defies common sense, which is something the unelected, black robed demi-gods who preside over our federal court system do with ease almost daily. We mere mundanes, on the other hand, lack their special wisdom, which allows them to interpret the words of the Constitution in a more innovative and sophisticated way. Our duty is to stand in awe, bow our heads, wave incense before their judgement seats, and to suppress any impulse we might have to think critically about their interpretations.

Don’t be fooled. As far as medical marijuana is concerned, all marijuana that is produced within a state’s boundaries and stays there, falls within the exclusive jurisdiction of that state!

Congressional Commerce Clause Abuse

It’s funny that the same “Commerce Clause”, which has been pervert ed by the federal government to prohibit the medical use of marijuana, was also the same clause that was twisted to justify passing the legislation that gave us Obamacare. Fortunately, Arizona voters will have the opportunity to effectively nullify both Obamacare and the federal prohibition of medical marijuana this November.

Whether you approve of people using it for any reason, medical or otherwise, the fact of the matter is that unless and until the US Constitution is properly amended (the way it had to be in order to enact alcohol prohibition), the federal government has no authority to interfere with seriously ill Arizonans who decide to use marijuana with their state government’s permission.

The last time I checked, I discovered that although the 10th Amendment has been largely ignored by the Feds, it has not not been officially repealed. Just like all health care decisions, a person’s choice to use or not use Medical Marijuana is a sensitive and highly personal decision. It’s a decision that should, at the very most, be decided by we the people, in our own state, not by politicians or unelected bureaucrats and judges in far off Washington, DC!

Like every other state level measure designed to nullify unconstitutional acts of federal usurpation, the Arizona Medical Marijuana Initiative has the potential to be an unstoppable choice if the people of Arizona simply resolve to exercise their constitutional rights, with or without Washington, DC’s permission.

The County Sheriff, America’s Last Hope

But won’t the DEA come in and arrest people who are dispensing medical marijuana and/or even the sick and dying people who use it?

Well, the answer to that question largely depends on whether or not your state officials, especially your elected county sheriff, allows them to get away with doing that.

More and more sheriffs and candidates who are running for the office of sheriff, are boldly coming out and frankly saying that they will not tolerate federal agents who would dare to harass and arrest the innocent people they have sworn to protect.

Bill Hunt, for example, is a candidate for sheriff of Orange County, CA.  He is part of a growing movement of incumbents and candidates seeking the elected office of sheriff who have seen the light.  This great awakening of sheriffs across the country has mostly been the result of the educational efforts of former under cover narcotics officer and two term Graham County, AZ sheriff, Richard Mack.

Here’s an excerpt from a recent interview with Bill Hunt:

Question: “If you are elected sheriff and the DEA came into Orange County (OC) and asked OC Sheriff’s Department to help shut down medical marijuana dispensaries, would you oblige them with support?”

Bill Hunt: “No. I would prevent them, it’s unconstitutional! I’m not an advocate for legalizing marijuana but on tpthe other hand the sheriff is elected to enforce state laws. So, if I’m elected sheriff to this county enforcing state law and I’m using federal law to circumvent state law, then I’m not really being true to my office and my oath of office. The sheriff can prevent the feds from coming in and doing that.”

I can assure you, Bill Hunt is not alone. There are sheriffs already in office, and many more running for office, who agree with him 100%. But even if you don’t live in a county with a sheriff who takes his oath to support and defend the Constitution seriously (give him a copy of Sheriff Mack’s book and start educating him about his oath, or replace him with someone who is committed to keeping it), here is what the Marijuana Policy Project (MPP) has to say about the matter that is very optimistic:

“Even within the confines of federal law, states can enact reforms that have the practical effect of removing the fear of patients being arrested and prosecuted under state law — as well as the symbolic effect of pushing the federal government to allow doctors to prescribe marijuana..Federal laws still apply to patients. While the federal government does not have the resources to arrest, try, and incarcerate a significant number of small-scale medical marijuana users and growers, the federal government has raided some large-scale medical marijuana distributors in California. However, because 99 out of 100 marijuana arrests are made at the state or local level, state medical marijuana laws give patients 99% protection.”

The Will Of The People And The Power Of The States

Take a step back and look at the big picture for a moment. What the MPP says about enforcement of the federal laws criminalizing medical marijuana also applies to other unconstitutional federal laws that states might decide to nullify. Some examples are: Obamacare, Cap and Trade, federal regulations on firearms manufactured and kept within state boundaries, the federal plan to ban incandescent light bulbs, or federal regulations that might prohibit the sale and consumption of raw milk. All of these have to actually be enforced by someone.

Get the Book Today!

The truth is that when enough people within a given state begin to form a consensus that certain federal laws forced upon them are unconstitutional and therefore illegitimate, and a majority of their government officials at the state and local level agree with and support them, then the idea that Thomas Jefferson expressed so clearly in the Kentucky Resolutions of 1798, will be actualized:

On Oct. 20th, 2009, Federal Drug Enforcement Agency (DEA) personnel raided the property of Mr. Martin Pieper of Fort Collins, Colorado, confiscating 150 cannabis plants and growing equipment. Mr. Pieper has claimed that his cultivation was allowed by Colorado’s medical cannabis law passed by initiative in 2000 (Colorado Constitutional Amendment 20) and that, as a designated caregiver, he is entitled to the return of his crop. To date, Mr. Pieper has yet to receive from the DEA one plant, one gram, or even one cent in monetary compensation for the confiscation and likely destruction of his property and the property of the patient’s under his care.

In an ironic twist, on Oct. 19th, the day before the raid, Federal Attorney General Eric Holder announced that the Justice Department would no longer prosecute those patients and caregivers who were in “clear and unambiguous compliance with existing state law.” The medical cannabis community breathed a heavy sigh of relief having endured crackdowns during the previous two administrations, and believed that this was the “Change” they had voted for. Unfortunately, the announcement was taken to mean that the Federal government would stop harassing medical cannabis patients and their caregivers entirely, but, as Mr. Pieper’s case is quickly demonstrating, the Federal government had no such intention.

Mr. Holder’s memorandum states that:

“The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” [Emphasis added]

These emphases tell a few things.

• It is up to Federal discretion as to what constitutes a “significant” amount as such ambiguity can always be used to their advantage to justify searches, seizures, and arrests.
• Federal prosecution of cannabis is still a priority despite state medical cannabis laws because of its Schedule I status.
• Pursuit of this priority is now simply discretionary instead of mandatory despite state laws allowing medical cannabis. If Mr. Holder had truly meant to exempt compliant medical cannabis patients and their caregivers from Federal prosecution, he would have put some definitive force behind his words by saying “will not” instead of “should not.” No doubt his statement was perused by a team of attorneys before going to print, to allow the maximum amount of wiggle room for the Feds should the public cry afoul of their actions and seek to hold them accountable.

Mr. Holder goes on to give a bold statement:

“Of course, no State can authorize violations of federal law…”

Au contraire, Mr. Holder! Many states, since the inception of the Union, have used the principle of interposition to nullify and “violate” Federal laws that were deemed harmful to their residents and their interests. The greatest such example of this was widespread resistance by abolitionist states to the Fugitive Slave Act throughout the mid-19th century. The use of nullification is an essential check on Federal overreach into areas not explicitly authorized by the Constitution. Contemporary examples of this include state nullification of Federal firearm regulations, REAL ID, national healthcare, and even the legalization of cannabis for medicinal purposes.

Is it possible that the DEA has had it right all along, that they knew Mr. Pieper was indeed using Amendment 20 as a shield for a commercial cannabis crop and thus warranted a raid? Yes, it is. However, the proper thing for them to do with such information would be to notify Colorado authorities and leave it up to them as to whether or not Mr. Pieper should be prosecuted. The Federal government has no legitimate authority to regulate that which is produced in a state until it crosses state lines. Furthermore, when it comes to what Americans can and cannot use as medicine, nothing in the Constitution authorizes the Federal government to regulate this either, in a clear violation of the sanctified doctor-patient relationship, as well as the 10th Amendment.

In modern, Western jurisprudence, it is proper to present evidence to a judge for a warrant, or a grand jury for an indictment; it is doubtful that the DEA did either. If this man is guilty of a crime, certainly the government can prove so beyond the shadow of a doubt before a jury in a court of law. Rather than steal Mr. Pieper’s property and leave him in a legal limbo, the Federal government should urge Colorado to prosecute this man and provide them with the evidence that will secure a conviction. If he is guilty of hiding behind Amendment 20 for his own personal gain, he deserves to be brought to justice for it in a Colorado court of law, and, in this writer’s opinion, he deserves to have the book thrown at him for discrediting the pure and honest intention of compassion that lies at the heart of the medical cannabis community.

I wholeheartedly implore Colorado residents to urge their legislators to give Amendment 20 some teeth when it comes to Federal interference. Coloradoans, as well as those residents in present and future medical cannabis states, must beseech their legislators to take up the spirit of the Kentucky and Virginia Resolutions of 1798 that declared it the solemn duty of the states to stand up to an abusive Federal government and interpose on behalf of their residents’ interests.

Partially nullifying unconstitutional Federal drug laws has not been enough to dissuade the Feds from calling off their goons. Demand that they make it a state felony, punishable by fines and/or prison time, should Federal agents interfere at all with the law-abiding members of the medical cannabis community, and that their proper role in pursuing the “wolves in sheep’s clothing” should be restricted to information-sharing only. Or best yet, encourage them to seek a “separate peace” to the “War on Drugs” by nullifying prohibition and pursuing a more peaceful and productive alternative, such as rehabilitation.

Whatever you decide to do, Colorado, do so with the foremost thought that your patients and their caregivers are still being harassed by the Federal government despite their overtures of non-interference, and that while imprisonment may no longer be mandatory in their rapacious repertoire, thievery still seems to be their forte. Do not give them the satisfaction, Colorado! Stand up for your sick and dying, the people who care for them, and the 10th Amendment to the Constitution!

CLICK HERE – to view the Tenth Amendment Center’s Legislative Tracking Page for State Marijuana Legislation.

Patrick Reagan is a libertarian Constitutionalist who is currently traveling abroad.

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

Article one Section 8 of the U S Constitution states that the “congress shall have the power to regulate commerce among the several states….” This so-called “commerce clause” is the legal bedrock for all federal regulation of business activity that crosses state lines. Every piece of federal economic regulation from the Sherman Antitrust Act (1890) to all of the 1930s New Deal securities and banking law has been rationalized (made “constitutional”) by reference to the commerce clause.

In Wickard v. Filburn (1942) , the Supreme Court expanded the original interpretation of the commerce clause to cover intrastate economic activity that was said to “affect” interstate commerce. Wickard grew wheat for his own consumption but the court reasoned that the wheat locally consumed could, theoretically, have been sold in interstate commerce; so when Wickard “withdrew” that wheat and consumed it, output and prices in interstate commerce were affected.

Hence the Feds could regulate locally grown wheat and the legislation that prescribed that was constitutional. The “logic” of Wickard obliterated two original and important constitutional principles, namely (1) that the states can regulate their own commerce, not the Feds and (2) that the federal Constitution embodies only limited and clearly enumerated powers.

Wickard substantiated the notion that the Feds could now regulate ANY economic activity (with little resistance from individuals or the states) since almost ANY good or service produced and consumed locally could, at least theoretically, affect interstate commerce.

We have all lived in a post-Wickard regulatory world ever since. So in some sense, the medical marijuana case decided June 6th, 2005 (Gonzales v Raich, et al..) in favor of the government (6-3) was an easy slam dunk (see also S. Kinsella’s post on the topic).

Reich and the other defendants in California grew marijuana for their own consumption but the majority asserted, following Wickard, that such private activity “affected” interstate commerce and, thus, could be regulated (prohibited) by the federal Controlled Substances Act (CSA), regardless of California state law which allowed (with supervision) such activity. If you don’t like the decision, the majority suggested, get the votes and attempt to change the federal drug laws.

There are many problems with the majority opinion written by Justice Stevens. The most obvious is the continued acceptance of the logic of Wickard. As Justice Thomas argues in his brilliant dissent, if growing 6 marijuana plants on your own property for your own consumption is “economic activity” that can “affect” interstate commerce, then there is absolutely nothing under the economic sun (including pot luck dinners) that cannot be regulated by the federal congress. But, clearly, that was not the intent of the framers of the Constitution.

But even more fundamentally, the Commerce Clause itself was never meant by the Founders to be a blank check for “command and control” economic regulation. Indeed, the economic purpose of Article one Section 8 was almost precisely the opposite of the conventional explanation accepted by the majority in this case.

The original intent of the Commerce Clause was to make “normal” or “regular” commerce between the states; thus it was designed to promote trade and exchange not restrict it. Further, it was specifically aimed at preventing the states from enacting impediments to the free flow of “commerce” such as tariffs, quotas and taxes.

And since the explicit language of the CSA, like all economic regulation, interferes with the free flow of commerce, it is inherently antithetical to the original intent of the Commerce Clause. (Whether the law could be legitimized by reference to the “police powers” of the state is another matter).

The commerce clause was never meant to prohibit sick individuals from consuming plants grown on their own property. Yet to acknowledge that fact, the Supreme Court majority would have had to rethink the core principles of individual liberty and the entire legal foundations of our regulatory society. And that they chose not to do.

Dominick T. Armentano is professor emeritus at the University of Hartford, an adjunct scholar of the Mises Institute, a member of the editorial board of the Quarterly Journal of Austrian Economics, and author of Antitrust and Monopoly: Anatomy of a Policy Failure and Antitrust: The Case for Repeal

Copyright Mises Institute, Licensed under Creative Commons Attribution 3.0

This article appeared in the DC Examiner on November 17, 2009.

Friends of federalism cheered last month when the Obama administration reversed the Bush policy of prosecuting medical marijuana cases in states that have legalized the practice. Welcome though that change was, let’s hold the applause.

Not yet a year into his administration, Obama’s record on 10th Amendment issues is already clear: He’ll let the states have their way when their policies please blue team sensibilities and he’ll call in the feds when they don’t. Thus, he’ll grant California a waiver to allow it to raise auto emissions standards, but he’ll bring the hammer down when the state tries to cut payments to unionized health care workers.

That’s not how it’s supposed to work. As Madison explained in Federalist 45, the powers delegated to the federal government were “few and defined,” to be exercised mainly on “external objects” like foreign policy and international trade. All else — criminal law, marriage, social policy — remained with the states or the people.

Of course, No. 45 also contains one of the Federalist’s saddest sentences, in which Madison predicts that federal tax collectors will be “principally on the seacoast, and not very numerous.” (Sometimes the Framers weren’t all that prescient.)

Indeed, the federal government’s massive power to tax and spend has increasingly allowed it to trample state prerogatives. As the $786 billion stimulus package came online this year, for the first time ever, federal aid surpassed the sales tax as the largest source of revenue for the states.

“This money isn’t manna from heaven,” warned Indiana state Sen. Jim Buck, “it comes with a price.”

California learned that lesson back in May. Struggling to close a $40 billion budget gap, the state government lowered payments to home health care workers, but the Obama team threatened to withhold billions of dollars in stimulus money unless the wage subsidies were restored.

Officials in Gov. Arnold Schwarzenegger’s office accused the Service Employees International Union, a longtime Obama ally, of improper influence.

Just a few years back, the Republicans — nominally the party of federalism — were busily wielding federal power to enforce red state values — prosecuting medical marijuana patients, punishing doctors participating in Oregon’s “Death with Dignity” initiative, and trying to overturn Florida court decisions that allowed Terry Schiavo to be removed from life support. In that odd political climate, you often heard liberals lamenting the decline of states’ rights.

That strange new respect for the 10th Amendment lasted roughly as long as the blue team’s exile from power.

Education Secretary Arne Duncan said recently that “if we accomplish one thing in the coming years, it should be to eliminate the extreme variation in standards across America.” Diversity is bad, uniformity double-plus good; get with the program, comrade.

But one of federalism’s core virtues is the enormous diversity it allows. Decentralization makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.

It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested issue is settled in a one-size-fits-all fashion at the level furthest from the people.

Our federal system shouldn’t be a red team/blue team issue, respected or flouted depending on who’s up and who’s down. Conservatives are learning to rue their abandonment of federalist principles during the last administration; liberals may come to regret their rush toward centralization during the next.

Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.