Drug Law Constitutionality
Submitted by Cheeseburger on Wed, 06/13/2012 - 07:39So let me first say the only drug I have ever tried recreationally is alcohol and only a handful of times mostly because I hate the taste. I don't condone drug use but do find its legality or lack of it kind of a mockery to the constitution. I was curious how it is constitutional to ban drugs so I decided to do research. This lead me to the Interstate Commerce clause which is a short sentence saying the feds can regulate international and interstate Commerce.
At this point I still had no idea how this even remotely applies to banning drugs. So I read more and found that basically the basis comes from a supreme court interpretation that even for example a person growing their own wheat or vegetables at home for personal consumption is covered under commerce because it would, no matter how negligible, effect the national market for wheat or that vegetable because they no longer would need to buy it. Now this obviously sounds ludicrous and basically means the feds could regulate everything in existence under this interpretation. But lets for the sake of argument accept this interpretation. I still have no idea how this effects drugs.
Marijuana is illegal. There is no market for marijuana. There is only an illegal black market. The market isn't allowed to exist. Therefore the growing of marijuana for personal use only effects an illegal market. Therefore how on gods green earth can drugs be made illegal. Under this interpretation I can see how they could ban the buying and selling of drugs but not the growing for personal use. The only way they could regulate growing for personal use is if the market for drugs was allowed to exist in the first place and was legalized. If no market exists growing for personal use only effects no market. I would like some serious responses besides just "the government sucks." I mean has anyone ever challenged the constitutionality under my sort of analysis? Can people start challenging prosecutions with this argument?
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I hope all of the threads below help answer your question...
But the big take away from this for you or anyone else is this.
If the slave owners write a rule that says "No slave shall be whipped on the Sabbath.". When you do something wrong on the Sabbath, and then appeal to this written rule for mercy. They will say, "Oops, that's not what was meant..."... scribble, scribble..."Slaves shall be whipped twice on Sabbath for wrong doing."...
They own you and me, and their written rules/laws are irrelevant because if the need arises, they will simply rewrite them.
Live in freedom, and you will be free.
Live (your principles), teach (your principles), ignore (laws that violate your principles).
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Two words..
Natural Law.
And my appeal to authority:
Lysander Spooner quotes:
For more than six hundred years -- that is, since the Magna Carta in 1215 -- there has been no clearer principle of English or American constitutional law than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust, oppressive, and all persons guiltless in violating or resisting the execution of such laws.
Lysander Spooner quotes:
And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. And they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived.
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I have sworn upon the altar of God eternal hostility to every form of tyranny over the mind of man.
Constitutionality is beside the point.
It is morally wrong to initiate violence against peaceful people.
We have no right to use violence, against people who have not used violence against us.
Always look to the Non-Aggression Axiom first.
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"The State is a gang of thieves writ large." - Murray Rothbard
here goes:
Gonzalez v. Raich Is now the controlling Supreme Court precedent regarding medical marijuana. The holding there was essentially (as you said) that all commerce is interstate since it has an "effect" on national commerce even if the enterprise in question is completely insulated within one state. Obviously, this was not the framer's intent and it is a ridiculous view. However, this so-called "expanded" view of the commerce clause has been used to justify federal intervention in numerous areas after the Supreme Court's (coerced) re-interpretation of the commerce clause under the FDR administration. Wikard v. Flburn was the basis for the majority's decision in Raich since in that case federal regulation of wheat cultivation was upheld even when it was clear that the wheat grow was solely for personal use. The reasoning was that even if the prohibited item / activity does not cross a border and is not even strictly commercial (since it is for personal consumption rather than sale) it "effects" the broader marketplace and the federal government's attempts to regulate it.
You would be amazed at how many laws are justified on the basis of the "necessary and proper" clause or the expanded commerce clause. Many, if not most, federal statutes start off with a purposely vague statement on jurisdictional authority that cites one of these two constitutional provisions as the basis for the federal government's ability to act.
Thomas' dissent is classic
Thomas' dissent is classic reading.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
The issue I see is this
Free will versus STUPID ACTIONS
There are many closeminded parents who would rather arrest and lock their kids up versus them smoking weed WHICH BTW has caused ZERO DEATHS since mans existance.
Now many look at alcohol as if it is a lesser drug than marijuana. I would love to see the death toll whether onroad, in homes or in public comparing the two.
If a parent wanted to protect his/her kids keeping them from alcohol would be far more productive than weed or any other drug for that matter.
Legalize all drugs and it won't mean people will run around shooting up heroin BUT some will, there will be some who will do it once legal but after they deal with throwing up NON STOP odds are they will either be dead or done with it and hoping to detox.
Marijuana does NOT need to be classified even with alcohol, tobacco and even not in the same category as caffeine. All of those KILL PEOPLE and marijuana has NEVER.
Marijuana however HAS helped many. I quit a 10+ year cigarette smoking habit thanks to marijuana. For those who think it is simply the "smoke" that affects you please do some research.
I get that we don't want kids running around smoking dope and acting like fools but that is where PARENTS come into play. We can't force kids to act right especially if the parents never laid down the groundwork by SHOWING their kids based on the PARENTS actions how to live, love and treat others as well as what we put in our bodies.
Most cigarette smokers had parents who smoke. Most alcoholics had drinkers for parents. We learn from our parents and then do what we can to form our own path as we get older BUT while condoning drug use is not the best thing, trying to force them NOT to is just as counterproductive.
I have kids and hope I raise them to THINK FOR THEMSELVES even if it is against my own opinion however I hope I teach them and show them HOW TO LIVE so that they too can emulate it including stearing clear of booze and dope but to me marijuana is a medicine that EVERYONE should enjoy whether recreationally or medicinally.
There have been kids with various diseases and disabilities put on various forms of marijuana and it HELPED THEM. Do I want to see 8 year old kids rolling joints down on the street corner? NO but to pretend that marijuana is BAD mmmmkay is complete b.s. because there have been too many causes of it helping.
Arthritis, epilepsy, cancer among many others MARIJUANA helps and there are plenty of case studies to prove it. I think they even did case studies with pregnant women who take marijuana (not sure if this was smoking or injested, topical, sublingual etc)
In the end we just can't assume to know everything and just because a plant makes you SMILE doesn't mean somethings wrong with it. Hell whats wrong with smiling especially with the economy the way it is. There are a thousand more unproductive things to do right now versus smoking some herb and relaxing the mind and body LIKE telling others what to do with THEIR BODY even if you disagree with it completely.
Most of the people I speak with about marijuana have a TON of bad stuff to say about it. Its sad because if you ask just ONE follow up question, they have ZERO response because all they know is "drugs are bad mmmkay" due to that damn egg commercial and of course reefer madness.
I want refeer madness to play at any and all anti pot rallies, groups or social events. I would love to watch everyone try and understand their justification for making marijuana illegal. That movie is one of the most racist, messed up LIES to scare the poop out of our people and politicians.
Its sad what can be removed in less than 100 years. Herb has been used for THOUSANDS of years (this time frame is always debated depending on whether you believe the short or long story of our existance I guess).
In the end
I don't know if I would want marijuana regulated because it will end up just like alcohol and tobacco. At least with the medicinal rights we have now, the BIG CORPS stay the hell out of it due to "fed laws".
Once it is legalized and regulated just wait to see what Monsanto and Greenhouse Seeds are odds are going to do. Registered and trademarked strains, only offer feminized seeds, odds are put a monsanto marker in the genetics so they can take your crop as they have done all over this country and world for that matter.
It worries me but at the same time PUBLIC OPINION and PERCEPTION does matter and if it can be LEGAL for a good 10+ years and watch crime go down it will be hard to reban it later on. Fighting to allow the small business owner the chance to "crop out" however is going to be a fight.
You know how many "walmart sized" businesses are just waiting to build MASSIVE GROW WAREHOUSES and completely corner / remove the market.
Thats why I would rather remove all regulations whether for or against and leave it 100% to each state to do with the drug laws as they see fit. We can't have a blanket law for all states especially on personal and business consuptionary products that can also have medicinal and recreational uses.
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My thinking is that
If a constitutional amendment was required for the Federal Government to make alcohol illegal in the twenties, then that means they didn't have the power to begin with, meaning that marijuana prohibition is illegal, as no amendment has been passed allowing for it.
Ron Paul 2016
You beat me to the punch here.
This is what I always say when talking about "illegal drugs" or, as I like to call it: "The War On Some Drugs." If they had to pass a Constitutional amendment to regulate JUST ONE DRUG, then they obviously have no power to regulate any others, either. Unless, of course, they pass another amendment to the Constitution to regulate each one.
Sounds similiar to my story
Here in Massachusetts, we decriminalized possession of up to 1 ounce in 2008. Police had me backed into a corner where they ended up searching my apartment and finding a half ounce of marijuana and a couple of cannabis seedlings. I wasn't arrested on scene, they waited to test the plants and sent me a summons, charged with cultivation.
My lawyer filed a motion to dismiss on my behalf, and this is what the Judge's ruling was:
The defendant moves to dismiss the charge against him for cultivating marijuana under G.L. c. 94C, s 32C(a). Since it is agreed that the amount of marijuana at issue is less than one ounce, he argues that the revision of the law as set out in G.L. C. 94C, s32L precludes such a prosecution. Section 32C makes it a crime to knowingly or intentionally manufacture, distribute, dispense, or cultivate marijuana. In making possession of less than an ounce of marijuana a civil offence in Section 32L, the Legislature provided that nothing in the new law “shall be construed to repeal or modify existing laws…concerning…selling, manufacturing or trafficking in marijuana.” There was no reference to cultivation. Manufacturing is expressly mentioned; “selling” could be interpreted to encompass distributing and dispensing – in other words, something involving participation with other people. Cultivating, however, is not such an easy fit. Since the term could as easily, if not more easily, connote growing marijuana for one’s personal use, it is difficult to conclude that the omission of the reference to cultivation was merely a drafting oversight. I therefore take it that 32L was meant to modify 32C with the result it is no longer an offense to cultivate less than [one] ounce of marijuana. Accordingly, this motion to dismiss is allowed.
So to your point, OP, since they only ticketed me for possession of <1 oz and charged me with cultivation, as opposed to possession with intent to distribute, my personal use argument succeeded. Unfortunately, only being at the district level, this precedent doesn't have to be upheld by any other judges. But it certainly helped me, and I'm sure it could be done again.
Let me 'splain it.
You see, growing marijuana and smoking illegal marijuana impacts illegal marijuana trade across borders by eliminating it, and you're not allowed to affect illegal interstate commerce by not engaging in it or by not creating a demand for it.
Understand? Me neither.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
shouldn't the question be
did or does the fed gov have the power or
authority to make it illegal,or did they steal the authority and power first?
seems to me they usurped their authority first,then made it
illegal afterwards
deacon
IS AN A-NARCHIST ONE WHO PRACTICES THE ART OF SQUEALING?
Ever since Ron Paul changed my position
on the drug war, I have thought about this. This is definitely something that would stand a chance in the Supreme Court I think, if someone got some top-notch lawyers and made a challenge. All nine Justices may be in favor of the drug war, but, when faced with the facts that it took a Constitutional amendment to prohibit alcohol, they might change their minds. Heck, being a "Conservative" majority, they might even overturn that ruling about not being able to grow a certain vegetable in your backyard if the government says so.
Read the treaty info below...
Unfortunately, it would fail in the supreme court as long as those treaties are in effect.
Unless, you challenged the treaty itself, which would be shot down because the judicial branch, to my knowledge, has never went against the legislative when it comes to foreign affairs.
The Philosophy Of Liberty -
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Regardless of what the SCOTUS rules...
We have lived under the false auspices of legal positivism for long enough...
The real question to start asking of suspect laws...is do they violate NATURAL LAW?
The answer is almost always YES.
I think there needs to be a new constitutional amendment defining in brief, what Natural Law and its associated Natural rights are. Then the amendment proclaims that "every law, act, order, or regulation which is in violation of Natural Law and its associated Natural Rights...is hereby declared unauthoritative, void, and of no force!"
~Chris
Norfolk, VA
~Chris
Norfolk, VA
Time to INVESTIGATE the investigators of 9/11. PROSECUTE the prosecutors. EXPOSE the cover-up.
I would dare say that the drug laws are unconstitutional.
The reason I say this is because to end prohibition they had to ratify the 21st amendment which in turn nullified the 18th. This means in general terms to outlaw alcohol it required a constitutional amendment to begin with in the 18th which stated:
18th amendment
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
If the founders and those that took the constitution seriously 100 years ago thought that they had the authority to ban alcohol without a constitutional amendment then they would have never gone through the process, yet we see not only it taking a constitutional amendment to outlaw, but another to nullify the outlawing of alcohol in the 21st.
21st amendment:
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
So this tells us that when government actually respected and used the constitution they highlighted the need for such an amendment to make illegal a substance that was man made, the bible took care of the organics as God said in Genesis 1:29:
Then God said, "I give you every seed-bearing plant on the face of the whole earth and every tree that has fruit with seed in it. They will be yours for food.
But that did not fit into the scheme of charging people with victim-less crimes for profit as we all know (and are reminded constantly) that we are a Christian nation, and we take the bible literally unless the power structure rallies against its very words.
So a little food for thought in your continued research would be, why did Congress find it necessary to vote on a constitutional amendment to ban alcohol, a product that people could make in their own home, yet for marijuana that can be grown in ones yard no amendment was needed? When "We the People" allowed government to make laws based on what the people of the day saw as unethical as opposed to a violation of law we opened Pandora box, and the inch given was taken 100 miles and we have laws today that have nothing to do with the constitution, but about profit for local and federal government, but these laws are promoted by special interest groups such as big oil, textiles, lumber, steel, and others that making hemp legal would effect.
Always remember:
"It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds." ~ Samuel Adams
If they hate us for our freedom, they must LOVE us now....
Stay IRATE, remain TIRELESS, an
Well in theory the reason no
Well in theory the reason no amendment was needed for marijuana is due to a newer supreme court interpretation of the interstate commerce clause. It is a ludicrous interpretation but my argument is that even with this interpretation it still doesn't allow for the banning growing drugs for personal use. The interpretation of the clause says that basically growing even things like wheat are covered in the clause because no matter how negligible even if the wheat isn't sold, the simple fact that the person growing it would no longer be buying it off the open market, it affects the wheat market. However my argument is there is no drug market that the growing of drugs for personal use could effect. the drug marget is illegal there isn't one. Therefore growing drugs for personal use has no effect on the market and cannot be covered by this broad interpretation of the clause. Only if the selling and buying of drugs was made legal would there be a market. Therefore only if selling and buying drugs was made legal would the growing for personal use only effect a market.
All treaties...
Are given the full weight of the constitution as if they were amendments. The international drug treaties therefore make the laws constitutional.
The treaties must be terminated.
The Philosophy Of Liberty -
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Not necessary.
International treaties do not trump the Constitution.
The Feds have the power to regulate cross border commerce. They cannot sign a treaty that abridges the 10th Amendment.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
Show me...
Where in the constitution does it give the Constitution superiority over treaties?
Because all references in the Constitution refer to treaties on an equal footing.
MJ is not illegal due to the interstate commerce clause. That has never been the justification.
It is illegal because it is classified as Schedule 1, which according to our treaties require all Schedule 1 drugs to be made completely illegal.
The Philosophy Of Liberty -
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Also...
SCOTUS has upheld this and clarified it in that manner. That the treaty MUST be follow the Constitution. And Congress can't consent to give powers forbidden to it to another country.
If it were otherwise, we could give away every right we have any time simply because the President signed a document with any other country.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
Link to the SCOTUS opinion...
Your interpretation of their opinion is not enough. Especially when there are so many cases in *evidence* that prove contrary to that.
Drug laws being the one discussed at the moment.
http://law.onecle.com/constitution/article-2/18-treaties-as-...
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made under the authority of
made under the authority of the US.
What that means is that if the Constitution doesn't grant the authority, the treaty isn't valid. The laws and treaties must be in pursuance of the Constitution. For instance, the US may make a treaty that they will not allow drug commerce to come FROM the US and can do that because it has control of cross border commerce.
It CANNOT make a treaty saying that it will outlaw drug use within the US because it doesn't have that power and the court would strike down the treaty.
Do you really believe that the Constituiton would give the President the power to make any treaty with any other country that allowed him to overrule the Constituiton itself? That's like being able to go back in time and kill yourself.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
That is not what that means.
It means approved by Congress and signed by the President. It does not say "allowed by the constitution", it says under US authority which is the Congress/President.
Which was to prevent states from entering into their own treaties which would be an end run around the federal government and the Constitution. So for the treaties to be in full effect as the supreme law of the land, they must be federally approved.
The Philosophy Of Liberty -
http://www.jonathangullible.com/mmedia/PoL.English.The.Philo...
Okay....
So if the President decides he wants good relations with Iran and says that the president of Iran and all his officials gets to rape your wife because that's part of the treaty, and Congress signs off on it, is it Constituitonal?
You say it is. I say it is not.
Look, Congress can't break the Constitution, the President can't break the Constitution. You can't say that there's a loophole that allows the government unlimited power as long as someone calls it a treaty. That's just illogical foolishness.
The treaties are a power to implement trade, peace and other agreements BETWEEN countries. They do not allow the Constitution and internal affairs to be subservient to other countries!
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
You clearly did not bother to read the link that I provided...
Would it be right, and just? Of course not. Would people rebel? I would hope so. Would it be constitutional? According to the SCOTUS and every legal mind to review it, absolutely.
And, it is NOT normal for a nation to implement such a system, because it is absurd. However, that is in fact what the framers did, on purpose.
Just because something doesn't sound right, and just because something seems absurd, does not mean our legal system doesn't work that way. In fact, our legal system is dependent on piles of absurdities.
The Philosophy Of Liberty -
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I did read the link. It
I did read the link. It doesn't way what you think
It equates a treaty with federal law in terms of its validity. Superior to the state, not to the Constitution.
SCOTUS has already said that a treaty may not infringe upon the Constitution.
Of course, there are a lot of fairly clear things in the Constitution that don't seem that clear to others.
I'd be fully in favor of making an amendment that says that no treaty shall infringe upon the Constitution, or any rights of any citizen, as long with clarifying a whole lot of things.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
That isn't the only flaw...
Honestly, the whole constitution is engineered to drive toward statism, not away from it. So, while, I would be happy to have amendments like that. It would also require 75% of the thing be re-written if it were to actually try to minimize statism.
The Philosophy Of Liberty -
http://www.jonathangullible.com/mmedia/PoL.English.The.Philo...
I'm willing to fight for
I'm willing to fight for that.
It should probably include statements after each paragraph saying "the meaning of provide for is ____" and "the Power to Tax clause is not to be inferred to mean a power to spend or a power to create agencies or "the power to regulate is the power to combine existing state law, not create new law and the commerce is only commerce, not all business activity and "among" means between, not everywhere we want"
So let's say we disagree on the meaning of that passage. It is the DUTY of SCOTUS to rule in the favor of the people, not in favor of Washington. The individual is greater than the state, and the state is greater than the federal government and that should be a prism by which all Constitutional gray areas are measured.
To paraphrase Thomas Jefferson "I'd rather ask permission than make the assumption".
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"
Here are some excerpts that I guess you missed then...
"In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision."
"How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress. The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’ promises was dependent on the state legislatures."
And finally:
"In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress’ enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass"
In other words, despite flowery language, it gives them ability to do whatever the hell they want and pretend like they didn't steal the authority to do so.
This is proven by the numerous times (including drug laws) in which they did this very thing.
The Philosophy Of Liberty -
http://www.jonathangullible.com/mmedia/PoL.English.The.Philo...
But that doesn't make it
But that doesn't make it constitutional, it just makes it seem that way to some. Nothing in those passages states that a treaty is superior to the Constitution. And further, it was never assumed that, say, a peace treaty or trade treaty would violate the Constitutional rights of anyone or go beyond the power of the federal government to regulate international trade and relations.
For instance, you can't have a treaty that states that black people shall be treated as inferior.
the concern was that the treaty power gave the President the power to make secret treaties and such, not that he could use it as a way of taking away the rights of the people, even with the permission of Congress.
"Timid men prefer the calm of despotism to the tempestuous sea of liberty." - Thomas Jefferson
"Annoyance is step one of thinking"
"We're all in the same boat, it doesn't matter if you like me"