Monday, November 7, 2011
The Turd Stew Thickens
Early reports suggest that the plaintiffs will rely on a novel variety of legal theories, including the 9th and 10th Amendments, collateral estoppel, equal protection and due process. The cases are being coordinated by attorneys Matt Kumin, David Michael, and Alan Silber of the NORML legal committee.
The 9th Amendment to the US Constitution broadly states that the People carry rights beyond those specifically listed in the rest of the Bill of Rights. Just become some rights are listed should not be construed to suggest that other rights DON'T exist, just because the Framers ran out of page space or didn't think to include them. It's kind of a catch-all that the Founders threw in to make clear that the first 8 Amendments weren't intended to be an exhaustive list.
Similarly, the 10th Amendment says that states have the power to do the stuff that isn't specifically included among the federal government's responsibilities. While the Constitution includes a lot of things that the feds can / must do (raise an army, make immigration policies, tax / spend, conduct diplomacy, govern interstate commerce, etc.), everything else is generally left to the states. Historically, medical laws, licensing and policing are the business of the individual states. That's why a California Driver's License looks different than a Wyoming Driver's License and why Arizonan frat boys can buy 190-proof Everclear.
Of course, federal laws trump California's state laws where they conflict, but ONLY if the feds actually have the constitutional authority to govern the thing they're trying to regulate. In past challenges, the Supreme Court has ruled that the feds may overrule CA medical marijuana laws under their "interstate commerce" powers, even if the marijuana is grown, sold and consumed entirely within the Great State of California (Gonzales v. Raich 545 US 1). As counter-intuitive as this sounds, the reasoning was based on the idea that production and consumption of marijuana ANYWHERE affects production and prices of marijuana EVERYWHERE. If Californians are growing their own, then they're probably importing less from other states, which means Oregonians are growing less of their famous Oregon Big Bud. Since laws that apply solely within CA may have ripple effects in other states, the feds have successfully argued that their interstate commerce powers grant them authority to reach into your nug jug.
For more commentary on medical marijuana in California, see "CA's Backward-Ass Medical Marijuana Laws", below). It remains the position of this blog that marijuana prohibition has been far more harmful than the drug itself. Our federal government continues to waste billions of our tax dollars fighting an unwinnable war based on an ill-conceived, Puritanical, paternalistic ideology. Despite President Obama's campaign promises not to expend federal resources fighting to keep seriously ill patients from obtaining their medicine, the administration continues to subvert the will of California voters.
More details to follow once the text of the suit is released publicly.
As always, please feel free to comment below, if it's just to tell me that you disagree.