From time to time I find it useful to read the US Constitution, especially when the United States government is attempting to assert a claim to its power to enforce any law passed by Congress that infringes unconstitutionally on the rights of the People and the States. So please bear with me as I explore what appears to be a renewed attack by the United States on the rights of the States and the People with regard to Cannabis.
I do understand that dissertations on Constitutional law by “jailhouse lawyers” can be tedious, so I’ll do my best to make this relevant to the Cannabis community and the challenges we appear to be facing from Daffy Don and his gang that can’t shoot straight.
The Constitution gives the United States the power to make laws, which must in every case be consistent with all provisions of the Constitution. This power to make laws is given to the US Congress, which has a long history of making laws that ultimately, when challenged, do not meet the test of Constitutionality. They are, after all, largely a band of fools.
However, all Federal (United States) agencies operate under the cover of laws passed by the Congress, which is why we have agencies like the DEA and FDA exercising powers and creating regulations that are not specifically authorized by the Constitution, but which are permitted by the enabling legislation passed by Congress – which they have a right to do as long as those powers and regulations, along with the enabling legislation, do not violate the Constitution.
This is where I would argue that attempts by agencies operating under laws passed by Congress to prohibit medicinal and recreational Cannabis violate the Constitution and are egregiously illegal and therefore are not enforceable.
Under Article 10, “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.”
So according to Article 10, since the power to regulate natural substances with medicinal or recreational value is not delegated to the United States by the Constitution, nor is it prohibited by those States that have legalized either or both medicinal and recreational Cannabis, then any such powers of regulation of natural substances with medicinal and/or recreational value including Cannabis are “…reserved to the States respectively, or to the People”.
Now, if it weren’t for the 18th Amendment there would be absolutely no precedent for Congress trying to regulate substances. But they did pass the 18th amendment, asserting that the People did not have a right to consume “intoxicating liquors”, and that the United States had the right to regulate those particular substances (intoxicating liquors) and proceeded to enforce that assertion by the creation of police and judicial powers.
Merriam Webster defines “liquors” as
- Alcoholic drink, especially distilled spirits.
Merriam Webster defined intoxicating as
- of (alcoholic drink or a drug) liable to cause intoxication.
And, Merriam Webster defines intoxication as
- an abnormal state that is essentially a poisoning (carbon monoxide intoxication; the condition of having physical or mental control markedly diminished by the effects of alcohol or drugs (drank to the point of intoxication), (cocaine intoxication)
It is obvious that there is no basis in scientific or medical literature to classify Cannabis as an “intoxicating” substance, and it is of course not a “liquor”, nor is there any basis for claiming that the effects of Cannabis can be defined as intoxication. Alcohol of course is an intoxicating drug and does operate through selective poisoning (intoxication) of the body.
Clearly the Constitution is focused on intoxicating liquids or substances that produce intoxication. And, there is overwhelming scientific and medical evidence that Cannabis does not operate on the human body or mind through the process of intoxication.
However, even with all that, under the 21st (Repeal) Amendment, the US government admitted that it did not have the authority to prohibit the People’s right to possess and consume “intoxicating liquors”, except in those states that themselves prohibited that possession and consumption. (Think of “Wet” and “Dry” counties in some States, and the reservation of the right to sell beer and alcohol by the State to itself, as in “State Stores” in Pennsylvania.)
Taking the above arguments into full account, it is clear that the only way that Congress can Constitutionally pass laws that empower United States agencies to enact regulations that prohibit the States and the People from possessing, growing, buying and selling, transporting and consuming Cannabis is by making an Amendment to the Constitution. Good luck with that, assholes.
So what the Cannabis community should be doing right now is working with the Attorneys General of those States that have legalized Cannabis to ensure that they are fully prepared to defend the Constitution when Daffy Don’s gangsters come calling, to the point of ordering State Police and the State National Guard to arrest and deport beyond State borders (preferably doing the Perp Walk in cuffs across the State line) any United States agents who attempt to violate the Constitutional rights of the People who it is their sworn duty to defend. The AG’s should also lock all offices of these Federal agencies in the state and seize all weapons. They might go further and issue arrest warrants for any Congressmen who passed the enabling legislation, as well as any officials of any of the agencies who are attempting to enforce these unconstitutional laws if they should ever set foot in the State. That would include the President.