A Layperson's Guide to the Commerce Clause and Cannabis

[RainDog]

http://blog.norml.org/2011/07/18/why-cant-cannabis-be-in-the-commerce-clause/


(by Byron Andrus, NORML Foundation legal intern and second year law student at George Mason University School of Law)

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.

Gonzales v. Reich: http://scholar.google.com/scholar_case?case=15647611274064109718

...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.

The Frank-Paul bill, HR2306, corrects the unconstitutional ruling that the federal govt. may control what a person grows in his or her own backyard when that person is in compliance with state law:
http://www.opencongress.org/bill/112-h2306/text

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The other issue at hand, tho, is the Supremacy Clause, i.e. federal law trumps state law. As we know from history, the application of this clause has good and bad effects (forcing the end of slavery was good, forcing states to prohibit cannabis is bad.)

The irony in this situation is that racism is what made cannabis de facto illegal. And this racist application of federal power is now being upheld by a President who would have been subjected to the harshest application of this law, simply because of the color of his skin.

When alcohol prohibition was enacted in 1919, the federal govt. felt it had to have a constitutional amendment because, at that time in American history, judges used the 10th amendment as a way to stop federal regulation of state-level activities and MEDICAL practices were considered outside of the realm of Congressional authority. Some doctors used alcoholic substances medicinally (as now, a glass of red wine is often considered useful for health and a doctor may tell someone this information.)

In 1930, the Federal govt. created a new bureaucracy, the Federal Bureau of Narcotics, to get around the reality that the federal govt. could not legislate medicine (i.e. drugs cannot be made criminal at the federal level.)

Prohibition of alcohol was repealed in 1933. Harry Anslinger, the head of the new Federal Bureau of Narcotics, launched an all-out racist propaganda war against cannabis, invoking the fear that cannabis would make black men think they are equal to white men. This is the legacy that Obama currently upholds.

Harry Ansligner: “Reefer makes darkies think they’re as good as white men.”

In 1937 Anslinger brought the Marijuana Tax Act to Congress. It has been prepared IN SECRET for two years. The lone doctor (who was the legal council for the AMA) testifying at the hearing noted this fact - that no one within the medical profession was consulted. This doctor also opposed the use of the word "marijuana" since it was not a legal term - the correct term for the substance in question is and was cannabis. Doctors regularly prescribed cannabis tinctures made by the likes of Eli Lily and Co. at the time. The doctor noted the lies of Anslinger and his yellow-journalist media whore, Citizen Hearst, but the Congressional committee, obviously, was not too interested in the niceties of fact or medical evidence. The more things change...

They were so disinterested, in fact, that they attacked the doctor. Of course, DuPont and Hearst probably had a lot more money than that doctor, and Congress seems to have been as full of idiots and whores for big business then as now. (Hello, Lamar Smith.)

On the basis of the lies perpetuated by Anslinger, with Hearst to create the media propaganda (sort of sounds like Murdoch and Fox News today, doesn't it?) cannabis was made illegal at the federal level.

The bill was disguised as a tax revenue bill that was only brought before 6 members of Congress in the Ways and Means committee. This allowed the bill to bypass the House and move to the Senate Finance Committee. The heads of both committees were allies of DuPont.

The bill that was created in secret for two years, that was bolstered by false stories created by Hearst and published in his newspapers, that had no evidence to back up its claims, that was opposed by the Seed Oil industry, by the AMA, and, otherwise, largely unnoted because it was about some mysterious "marijuana" instead of the plant, hemp, and the medicine, cannabis, by which is was known in this nation, was passed without a roll call vote.

Anslinger then became the defacto enforcer for the DuPont Company to prevent any licensing of the hemp industry in the U.S, as well as the enforcer for doctors who would prescribe medical cannabis for patients. In that same year, DuPont filed a patent for a synthetic product, Nylon, whose greatest competition was hemp.

Now we have the Commerce clause providing the cover for industries that do not want competition, and willing collaborators spouting lies in the federal govt. in order to do the bidding of the pharmaceutical industry, the oil/petrol industry (hello, Lamar Smith), as well as the alcoholic beverage and cotton industries.

just fyi.