STATES' RIGHTS ORIGINAL INTENT

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Constitution, Amendment IX

“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.” Amendment X

I had the privilege of attending a rally honouring a doctor and her lawyer husband, who were about to surrender at the Federal Courthouse to begin serving five years each for distributing medical marijuana. Though distributing marijuana for medical purposes is legal under California law, federal laws make no distinction between medical marijuana and recreational marijuana…it’s illegal. Since our country is a union, the short and simple rule holds hat no state can violate federal law. Most of the time, simple rules are the easiest to follow, hence the best. This time, the simplicity is complicated by the fact that two good people, who have done no harm, are now doing hard time.
The law is not allowed to question whether any harm was done. Many of the participants at the rally claimed that marijuana had actually saved their lives. Still, federal law was broken, so those claims are of no consequence. If the citizens have problems with the law, the theory goes that they may tell their representatives to change the law. But Congress is not about to do that.
Therefore the good doctor and the good lawyer are in prison.
The Constitution was enacted, with its Bill of Rights, partly to assure that people who do no harm stay out of jail. We know that our institutions are human ones, like all others on earth, and that we’re not living a fairy tale. We’re not perfect. This excuse cannot be convincing to the good people who are in jail, however, nor does it hold for thoughtful citizens who are interested in seeing our system perform in reality the way it’s supposed to in theory. Amendment X has been scrutinized a lot lately, in respect to federal laws that have nothing to do with marijuana. Other people have issues with newly enacted federal laws. Can states opt out? We got the answer in 1865: no. But study of the ninth and tenth amendments reveal some of the founders’ attitudes that could be relevant today. Medical marijuana appears to be a justified use of States’ Rights.
We can, of course, make windy arguments about what is legal under the Bill of Rights. But the plain English of the ninth and tenth is quite straightforward, and it reveals nothing that allows the national government to restrict lifestyle choices. In fact, Nine and Ten, like One through Eight, severely restrict the national government’s ability to prohibit basic personal freedoms. Marijuana prohibition has been enacted under the Constitution’s Interstate Commerce Clause. The federal government can regulate products traded between the states—including marijuana. But within a state, where is the federal authority to limit personal use of anything?
Number IX obviously expands the rights of the people beyond those few listed in the Bill of Rights. And number X clearly restricts federal powers to those listed. No matter how broadly we interpret Constitutional powers, there still is no foundation for federal criminalization of a product used strictly within a state. Amendments One through Eight list certain basic rights. But Nine and Ten assure us that those rights are not the only ones, and that the federal government cannot deny rights simply because the Constitution’s framers did not happen to mention them.
Historically, the issue of States’ Rights usually dealt with slavery, and after the Civil War, with segregation and racial discrimination. It has been decided in Congress, the courts, and general public opinion, that states do not have the power to withhold from their citizens any of the basic rights listed in the Constitution. The thirteenth, fourteenth, and fifteenth amendments made sure that these basic rights were guaranteed nationwide to everyone. Those rights not mentioned in the Constitution are left to the states, and if the states do not act upon them, individuals retain them.
Excepting the sixteenth (income tax) and the twenty-fifth (presidential succession) all the constitutional amendments enhance citizen power or basic rights. The founders knew they could not think of everything, so they provided for the growth of freedom in the future. A restrictive amendment, Number XVIII (prohibition) was repealed by Number XXI. Substitute “cannabis” for “intoxicating liquors” in these amendments, and the marijuana issue solves itself. And lest we forget, even during prohibition, doctors were allowed to prescribe medicinal alcohol. States are now free to make their own liquor laws.
The Supreme Court, in “Gonzales vs. Raich,” (2005) ruled that the Interstate Commerce clause grants power to the federal government to override the Ninth and Tenth Amendments, and even contradict several of their own recent states’ rights cases, so that the Bush Justice Department could legally ride roughshod over sick people. The Obama administration has indicated it will ignore personal use in states where medical marijuana is legal, but profiteering will be prosecuted. The Supreme Court’s decision is obviously wrong, and it needs to reverse its own opinion. Or Congress needs to legislate for the reality that not only do states have the right to legalize marijuana, medically or otherwise, but that Americans generally favour decriminalization, by steadily increasing numbers.
Medical marijuana remains in chaotic limbo because no politician wants to be accused by his opponents of being “soft on drugs.” But everyone knows the War on Drugs has failed. Still, sick people are harassed and bullied, and a doctor and a lawyer, among others who have harmed nobody, must do hard time. A decent society, a free society, does not incarcerate people who cause no harm. We pride ourselves on being a society of “laws, not men.” But since men make laws, and men make mistakes, we must vigilantly find and repeal bad laws. If we cannot do that, we can no longer honestly call ourselves free.