"Marijuana, Prohibition and the Tenth Amendment"

"Marijuana, Prohibition and the Tenth Amendment"
http://www.extremeink.com/susan/prohibit.htm

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."

The Court may not be able to duck the issue much longer. If the people of each state choose to decriminalize marijuana in some circumstances, the Constitution plainly reserves to them the power to do so.

Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on "How the First Amendment Came to Protect Topless Dancing."

Source notes: The Madison quotation is from Federalist No. 45, available online at http://thomas.loc.gov; the Justice Thomas quotation is from U.S. v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483 (2001), available online at www.findlaw.com.

© Copyright 2003 by Susan Shelley
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On June 6, 2005, the U.S. Supreme Court ruled 6 to 3 that the federal government can continue arresting patients who use medical marijuana legally under their state laws. However, the court did not overturn state medical marijuana laws or in any way interfere with their continued operation.
http://www.mpp.org/raich/
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People in the US who use cannabis for medical use risk prosecution following a ruling by the US Supreme Court.

The Supreme Court ruled that laws in at least nine states that currently allow medical marijuana do not protect users from a federal ban on the drug.

However, Justice John Paul Stevens said Congress could change the law to allow the drug's use for medical reasons.

Advocates say cannabis is more effective than conventional forms of pain relief and without side-effects.

The 6-3 ruling by the Supreme Court is a victory for President George W Bush's administration, which was appealing against a ruling it lost in December 2003.

The court has now ruled that the federal law applies to two seriously ill California women, even though the state allows medical use of marijuana.

Angel Raich, who has an inoperable brain tumour and other medical problems, and Diane Monson, who suffers from severe back pain, were recommended marijuana by their doctors.

Ms Monson grows her own marijuana while Ms Raich receives hers free of charge from her carers.

Justice Stevens said the Controlled Substances Act of 1970 was a valid exercise of federal power by the Congress "even as applied to the troubling facts of this case".

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