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.