Why Can’t ‘Cannabis’ Be In The Commerce Clause?
July 18th, 2011 By: Allen St. Pierre, NORML Executive Director
by Byron Andrus, NORML Foundation legal intern and second year law student at George Mason University School of Law
Recently, NORML supported the efforts of Congressmen Ron Paul (R-TX) and Barney Frank (D-MA) in their sponsorship of H.R. 2306, ‘Ending Federal Marijuana Prohibition Act of 2011’, a House bill which seeks to remove federal penalties for marijuana offenses and thus allow for the individual states to set their own marijuana policies. While the bill will likely fail to reach even a committee hearing due to the efforts of another Texas Republican and Judiciary Committee Chairman, Lamar Smith, its introduction has raised some interesting constitutional questions and has given more food for thought to legal scholars interested in the oft-forgotten 10th Amendment.
The 10th Amendment reads rather plainly: “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.” Essentially, this means that the powers not granted to the federal government by the Constitution, which are very limited in number, are left to the state legislatures. This may seem obvious, but judges and constitutional scholars have continuously debated about what “the powers not delegated to the United States” are.
Controversially, the power of the federal government to regulate interstate commerce granted to it by Article 1, Section 8 of the Constitution has been interpreted by the Supreme Court to mean that the feds may regulate nearly anything that has an effect on interstate commerce. In the landmark case of Gonzales v. Raich, the Supreme Court ruled that a woman who grew marijuana plants on her property for her own medical use was participating in “interstate commerce.” Justice Clarence Thomas, in his dissent, astutely observes, “no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” This common sense reading of “interstate commerce” would prevent the federal government from harassing peaceful citizens who are in compliance with state laws, and is a good example of a “10th Amendment” approach to the issue of marijuana legalization.
The Founding Fathers took great pains to choose carefully the words they inserted into the text of the Constitution. Nowhere in the document is the federal government granted the power to regulate intrastate commerce (commerce within one state). Furthermore, “commerce” refers to transactions in which goods or services are exchanged. Ms. Raich did not intend to buy, sell, trade, or give away her marijuana, she only intended it to be used for her own medical purposes—despite this and the clear omission by the founders of a federal primacy regarding states’ economies under the 10th Amendment. The real world application of the Gonzales decision means that those with serious illnesses like Ms. Raich are not legally permitted to grow and consume their own medicine—even if state laws allow for such.
The Commerce Clause has also been invoked when armed federal agents decide to raid dispensaries in states where medical marijuana is legally permitted to be sold. The latest memo from the Department of Justice, known as the ‘Cole Memo’, suggests that the federal government will continue to raid dispensaries, even ones that are operating in accordance with state laws. This contradicted a 2009 memo written by the former Deputy Attorney General David Ogden, in which he suggested that federal resources should not be wasted on marijuana enforcement as long as dispensary owners remained in “clear and unambiguous” compliance with state law. This reversal in policy now suggests that the federal government can target those involved in the medical marijuana industry, even those in compliance with state law.
In addition to the constant threat of arrest and prosecution, the potential loss of one’s business creates a great deal of uncertainty in the markets of states where medical marijuana is legal. Investing in a dispensary has become a risky proposition, and it has led to dispensary owners already heavily invested in the business to wonder whether or not they will be able to open their doors. This uncertainty causes patients to go without their medicine and causes business owners to flounder under unclear regulations. Removing the federal penalties for marijuana offenses by passing H.R. 2306 would completely eliminate this problem, as patients and business owners would simply need to comply with state laws, no longer having to worry about getting their doors kicked in by federal agents. A “10th Amendment” approach to marijuana policy would finally ease the fear and uncertainty that are part and parcel of federal Marijuana Prohibition.
An expansive reading of the federal government’s ability to regulate interstate commerce seems to be at odds with the 10th Amendment. Since the federal government may not regulate intrastate commerce, it follows that this is a right reserved to the states. The division of powers in our federal system was intended to prevent an overreach of federal power. Unfortunately, the ever-expanding federal government now sees fit to regulate everything from the amount of water you can have in your toilet to what kind of light bulbs consumers can buy to what plants you may grow on your property—the laws of the states be damned if necessary.
H.R. 2306 puts forth the common sense proposition, consistent with the 10th Amendment, that it should be the prerogative of each state to determine for itself whether or not to legalize marijuana for either medical or recreational purposes—a tried and true, and constitutionally sound approach that previously worked to end the folly of another federal government overreach, Alcohol Prohibition. A return by federal judges to interpreting the plain meaning of “interstate commerce,” coupled with an emphasis on the 10th Amendment, would mark an excellent starting point in getting the federal government out of the way and allowing state governments to make their own informed decisions on marijuana policy.
"Unless we put medical freedom into The Constitution, the time will come when medicine will organize into an undercover dictatorship."
Dr. Benjamin Rush 1787
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Yes. Many people have looked into this. It will not be blared out load over national television and you won't find it in the papers. To answer your question is fairly easy, to correct the mistake is not easy at all. I will explain but first let us get so of the laws in the way first.
Bill of Rights
Amendment 10 - Powers of the States and People.
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.
Amendment 13 - Slavery Abolished.
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
ARTICLE I DECLARATION OF RIGHTS
Sec. 36. Other rights of the people.
The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.
Ok. There are your Laws that deal with your question. The 10th amendment of the Bill of Rights, and Sec. 36 of the North Carolina Constitution are talking about the same thing. However in the NC constitution it does not say state, it just says people.
Where we the people run into problems with the United States is in the commerce clause, and the amendment 13 & 14.
What essentially happened back in the 1860's, is the slaves were freed. The people of the states and the states, would not accept the newly freed slaves to be citizens of the states. This caused a lot of commotion and trouble. The Congress devised a solution to give the newly freed slaves rights. They would create a U.S. Citizen and place the slaves under that category. This would give the slaves rights, and get them on a more equal playing field with the rest of the "people." This is all history go look it up if you don't believe me.
The key sentence within the 14th amendment is the very first. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
And subject to the jurisdiction there of.
See when dealing with the political powers in the united States of America it goes like this. People-Government-Citizens
The People ordained and established giving enumerated powers to a federal government. The federal government created a U.S. Citizen. It is the power of sovereignty playing out here. the one that creates is the sovereign.
I am sure many reading this have no clue what is going on right now so lets clear up who we are if we are born in a state.
We the people born in a state of the Union are not U.S. Citizens. We are U.S. Nationals, we are also called the People. We are referred to as the Sovereigns. We are not under the jurisdiction of the united States of America at all unless dealing in the enumerated powers or if we are in a foreign land.
What has happened is most of us have at some point in our lives signed under penalties of perjury that we are U.S. Citizens. This has been mistakenly done for many years. Since we claimed our domicile is within the boundaries of 10 square miles of Washington D.C. then no matter where we are we are still under their jurisdiction. If you have claimed to be domiciled in the U.S. but actually live in a state (which is a foreign jurisdiction) then any commerce you do is subject to their rule.
Just to clear things up. Every state in this union is a separate country with separate jurisdictions that have joined together to form a union for better protection against foreign powers. We have treaties between states to make things like travel easier.
That is your answer to explain why it is ignored, though people have noticed. Like I said in the beginning, fixing the mistake is a little harder than getting into it.
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