Marijuana, Prohibition and the 10th Amenment

[tricome]

Some interesting reading I ran across.

Marijuana, Prohibition and the Tenth Amendment

By Susan Shelley

Sooner or later the question will have to be asked: Does the federal government have the power under the Constitution to stop cities and states from legalizing marijuana?

The answer may be no.

Federal law bans the possession of marijuana. But if a simple federal law can ban marijuana, why did Prohibition of alcohol require a constitutional amendment?

A little history answers that question. The U.S. Constitution was ratified in 1789 to provide a framework for governing a nation composed of thirteen separate, sovereign states, each with its own state constitution and government. This was a new concept known as federalism.

James Madison explained that the federal government would have only the powers delegated to it by the Constitution. Those powers would be "few and defined," he said, while the powers remaining in the state governments would be "numerous and indefinite."

The states remained suspicious that the new federal government would encroach on their powers. They demanded and got ten amendments to the Constitution that specifically banned Congress from passing laws on matters that were understood to be within state control. The Tenth Amendment flatly declared, "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."

In 1919, the United States enacted a national ban on the manufacture, sale or transportation of intoxicating liquors. Because the Constitution did not give the federal government the power to regulate alcohol, Prohibition required a constitutional amendment, which was approved by two-thirds of the House and two-thirds of the Senate, then ratified by the legislatures of three-quarters of the states.

In 1933, the nation reconsidered. A constitutional amendment repealing Prohibition was approved by two-thirds of the House and two-thirds of the Senate, then ratified by the legislatures of three-quarters of the states.

Why did the country go to all that trouble if Congress could simply have declared alcohol a "controlled substance" and made it legal or illegal with a simple majority vote and a presidential signature?

If marijuana is grown, distributed and consumed within state borders, and the state government decides that under some circumstances that is not a crime, by what authority does Congress override that judgment? Why is marijuana in 2003 different than alcohol in 1919?

The Supreme Court ruled recently that the federal Controlled Substances Act does not contain an exception for medical necessity. Lawyers for the Oakland Cannabis Buyers' Cooperative argued that, exception or no exception, the Controlled Substances Act "exceeds Congress' Commerce Clause powers" and infringes the "fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments."

The Supreme Court did not want to talk about it.

"Because the Court of Appeals did not address these claims," Justice Clarence Thomas wrote, "we decline to do so in the first instance."

[Soniq420]

Originally Posted by tricome

The Supreme Court ruled recently that the federal Controlled Substances Act does not contain an exception for medical necessity. Lawyers for the Oakland Cannabis Buyers' Cooperative argued that, exception or no exception, the Controlled Substances Act "exceeds Congress' Commerce Clause powers" and infringes the "fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments."

The Supreme Court did not want to talk about it.

"Because the Court of Appeals did not address these claims," Justice Clarence Thomas wrote, "we decline to do so in the first instance."

That's an awful favorable hint from the SCOTUS, in my opinion.

Their published opinions and comments are always carefully worded. The only reason I can think of for add that "we decline to do so in the first instance", to me, means, bring us an incident where the Appeals Court did review this area.

I could see this being 7-2, which both the liberal 4 and the strict constitutionalist 3 both coming down on our side

Again, just in my opinion, but the table that holds the house of cards that is our current war on drugs, has a wobbly legs, and the commerce clause is the weakest amongst them.

[tricome]

Didn't the SCOTUS rule that the marijuana stamp act was unconstitutional in the Leary case? Right before Tricky Dicky circumvented the constitution with the federal controlled substance act. Nixon ignored his own commission and pushed this crap through. A back-handed way to arrest Vietnam war protesters who were a thorn in his side; I believe.


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