Aug31

Written by:di
8/31/2010 6:00 PM 

Federal vs. State: a classic loop-hole story

Despite it’s coined name as the “peace” plant, the current controversies surrounding marijuana are anything but. As dispensaries have grown in numbers, there has been a lot of misinformation.

Of recent, there have been violent anti-marijuana attacks on dispensaries in Billings, MT, and numerous in-court battles between anti-marijuana municipalities and legitimate licensed dispensaries. Anti-MMJ cities and municipalities may be victims to ignorant “reefer madness” propaganda about the plant, but they all have one legitimate argument: federal classification of marijuana as a Schedule 1 drug, which is considered to be dangerous and has no medical benefits. It’s difficult to deny fed fearing citizens, especially elderly folks who have witnessed a threatening overreach in federal powers over the last 70 years.

Federal classification and regulation of cannabis contradicts states rights to issue licenses and determine the overall good for its constituents.

Under Amendment 10 the powers not enumerated to the federal government in the Constitution are reserved for the states. There is nothing in the Constitution that grants the federal government the right to determine citizen’s medical practices, nor contradict state’s rights to issue licenses. The Federal Drug Enforcement Agency’s raids on Colorado MMJ cardholder’s, such as Ft. Collin’s resident Martin Pieper is a direct affront on state's rights found in the Constitution.

The federal law which classifies marijuana as a Schedule 1 drug — a category of drugs not considered legitimate for medical use (Laughable! Tell that to someone with PTSD or cancer) including LSD, synthetic heroin, ecstasy and peyote — nor any federal law, for that matter, which is not found in the Constitution, can trump state’s rights:

“Many states, since the inception of the Union, have used the principle of interposition to nullify and “violate” Federal laws that were deemed harmful to their residents and their interests. The greatest such example of this was widespread resistance by abolitionist states to the Fugitive Slave Act throughout the mid-19th century. The use of nullification is an essential check on Federal overreach into areas not explicitly authorized by the Constitution...-Patrick Reagan, 10th Amendment Center.”

So if the states right to issue MMJ licenses is protected under the Constitution, where does the federal government get Constitutional ammunition to take a “proverbial” dump on state rights? Two words: Commerce Clause. Under the Constitution the federal government is granted the power, “To regulate Commerce with Foreign Nations, and among several States, and with the Indian Tribes.” In Wikard v. Filburn, 1942, the Supreme Court ruled that the Federal government could regulate any economic activity that affects interstate trade. Because of legal precedence -—the judicial practice of considering past rulings on similar present cases — this became the accepted interpretation of the Commerce Clause and opened the floodgates for federal regulation of the states. This broad interpretation has essentially wiped out state’s rights over the past 60+ years.

But do not fret! There is hope for state rights, and unsurprisingly MMJ seems to be the next Supreme Court test of that loose interpretation.

Beautiful, progressive Colorado is among the few states leading the charge against the federal choke-hold on cannabis-law and many other state rights. Marijuana-intolerant municipalities may be forced by the state to drop their bans on dispensaries.

Last year in Arapaho County Court’s CannaMart v. City of Centennial, Judge Christopher Cross ruled in favor of the dispensary, based on Centennial’s reliance on marijuana’s illegality under federal law which is eclipsed by the Colorado Constitutional amendment legalizing weed.

Currently, Westminster, CO is facing the same push-back from banned dispensaries.

The future remains bright for Colorado cannabis users, especially with politicians such as Rep. Jared Polis on our side.

We welcome your comments, questions and shared information.

Thank you.

BKC Bloggers
Lance Smith, Leah Fielding