The U.S. Constitution and State Medical Marijuana Laws

As I write this, fourteen states of the United States have decriminalized marijuana for medical use. Colorado is one of them and is another stage for a showdown between State Law and Federal Law. Colorado by no means stands alone in this distinction. There have been showdowns in other states. For example, a California woman's marijuana crop was seized and destroyed by the DEA even though it was clearly grown for personal consumption under California's medical marijuana legislation. On the surface, I reckon many people might think this is because of the Supremacy Clause of the U.S. Constitution.

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 not withstanding.

Case law interprets the clause to mean State Law is trumped by Federal Law - "... Laws of any State to the contrary not withstanding." State Law can't overlay Federal Law because Federal Law is the supreme Law of the Land. What that means is the DEA can ignore state law and bust any marijuana user, grower, or dispensary regardless of state law. The Federal system functions with impunity despite the will of the People in fourteen States.

I can hear the opposition's argument based on Amendment 10 of the Constitution, the Sovereignty Clause. Some might say the Sovereignty Clause protects medical marijuana users.

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 first ten amendments, the Bill of Rights, are based on the Articles of Confederation. The precursor to the Sovereignty Clause in the Articles of Confederation more clearly indicates the intentions of the authors than does Amendment 10 itself.

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

However, the powers of the DEA are not connected to the Supremacy Clause or the Sovereignty Clause. The authority for the DEA to bust people growing for personal and medical consumption comes from the Commerce Clause.

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

The California woman's lawyers maintained and clearly showed the marijuana plants were for personal consumption. But the Supreme Court decided regardless of that, growing one's own marijuana effects interstate traffic nonetheless. The woman didn't buy her marijuana from an interstate supply and her own crop was absent from the interstate traffic. Nevertheless, the marijuana was under Federal Law because interstate commerce could have been effected. There was no way of knowing the marijuana would not enter the interstate market. The woman was prosecuted despite California State Law and lost her law suit because interstate commerce was merely possible. Even though it was shown without a doubt that the crop was for personal use and would not ever be sold or transported over state boundaries. The Commerce Clause was brought into play because of another clause of the Constitution called the "Necessary and Proper Clause" .

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

What all these clauses have in common is the standing of State Sovereignty and the Sovereignty of the People against the standing of Federal Sovereignty. Legal experts who have experience with the U.S. Attorney General's office have said that the now infamous memo containing the Obama Administration's directive to back off medical marijuana states is the most ambiguous directive they have ever read.

It seems that the Federal Government can enforce the Commerce Clause on the speculation of interstate commerce. It's a law you don't have to directly break. In reality no law was broken. Prosecution was on the speculation that the plants could be transported across state boundaries. A person can be prosecuted on the mere possibility that a law could be broken. It's like being pulled over for speeding because, even though you didn't, hypothetically you could have broken the speed limit.

Justice Clarence Thomas stated his dissent over the case very clearly:
"The respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers."

What is important to observer is a grassroots mindset has grown strong enough to pass marijuana decriminalization laws. The will of the population is poking up through local legislation; having rooted itself, it is now making itself seen.

The functional structure of the U.S. government is better described as a federation of Corporate Operations under two factions (the Democratic Party and the Republican Party). It's reasonable to ask if a grassroots movement can break the surface of the corporate landscape? As long as there's a way to make money at it, a corporation will use all its legal force to find loopholes. It's what happens when something new is accepted to the free market. Corporations will follow the money as soon as the liability is low enough.

How much are you worth?

For the sake of discussion, if you are a U.S. citizen do you want public health care and open access to schools? If you needed a doctor you just go. No co-pay, no remainder after the insurance. If you wanted a bachelors degree you just go. There is no tuition and the books don't cost a cent. Open health care and open education would be good things right? But now say it came at the price of a flat 60% tax rate. Are you still on board?

Denmark has such a tax rate and every Danish citizen has access to doctors, clinics, hospitals schools and universities. Every citizen has access to modern health care facilities and doctors. But it comes at a cost. Every citizen pays taxes for this access. In the U.S. we have premiums, co-pays, and co-insurance instead of high taxes. No matter how we turn the picture there is always a price; common sense - right?

The U.S. electorate is demanding Congress to get on with health care reform. If the solution is something like the Danish model, would the U.S. electorate celebrate or reject it? It's easy to celebrate and it's easy to do nothing, but would the electorate have enough gumption to throw it back? There's some satisfaction in imagining the electorate would rise up on its hind legs and spit back. But historicistics, the history of social developments, suggests the electorate is more likely to wake up and go to work. Sustaining the lifestyle comes first; most of us have to get up in the morning and go to work. Civil disobedience in the 21st century is a forgotten trump card. The electorate is justly concerned about compensation. That leaves only celebrating and doing nothing. Is public access to state supported education and health care worth 60% of your earnings?

If the electorate demands health care reform (it should be insurance reform but...), knowing that it will cost something is common sense. Let's be realistic; nothing is free. Open access for all citizens will cost billions. What is the electorate willing to pay?

There's no doubt in my opinion that education and health care should be state supported in the sense that every citizen has free access. The costs of health care and higher education under corporate auspices have inflated to unaffordable and as long as corporations are involved unregulated costs will continue to rise. Corporations have no altruistic intentions regarding open access to doctors and teachers, hence the object of the paper chase is the money; quite different than the objectives of education and health care. Such things can't be left in the hands of corporations without state regulation and enforcement. It's a formula for several tragedies. As collateral, I can only point to the greed that caused the economic recession of 2009-2010.

The dysfunctional state of the U.S. Congress suggests whatever comes from health care reform will be compromised and the consumer will pay full price for it. Congress can't do it and corporations can't be trusted. The most likely reality is that health care will remain the domain of corporations. The compromise will probably be a government regulated health care system. Enforcement comes part and parcel to regulation which will cost something and is by definition subject to bureaucratic paralysis. It appears the electorate is stuck between death and taxes, and thus it boils down to a question of economics. How much are you worth?