License to Grow Pot?


Today Ed Rosenthal, the marijuana cultivation expert familiar to fans of the "Ask Ed" column in High Times, goes on trial in federal court. The charge, marijuana cultivation, is not surprising, but the context is. Rosenthal was nabbed only because he tried to go legit, growing marijuana for distribution to California patients permitted to use it by state law. Not only did he have the backing of Proposition 215, the state's medical marijuana initiative, but the city of Oakland explicitly authorized him to handle pot, declaring him "an officer of the city" to protect him from federal prosecution.

Needless to say, that didn't work. In conflicts between local or state law and federal law, conventional wisdom holds that the national government must prevail. In this case, however, the feds are trying to exercise powers the Constitution does not grant them: to declare what is and what is not legitimate medicine, for instance, and to ban the intrastate production and possession of a particular crop. Although the DEA insists Rosenthal does not have a legal leg to stand on, it's really the drug warriors who are acting lawlessly.

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  1. Kevin:

    The argument regarding the Supreme Court’s authority regarding cases not before it has been made many times and by those probably more able than either of us. Given that our exchange is unlikely to add much to this historical debate, I’m willing to let it rest, subject to an observation or two.

    The idea that the Supreme Court’s statements of law have no authority except in the case in which they were uttered has a long history, both noble (e.g., Lincoln–though maybe you feel differently regarding Lincoln–with respect to Dred Scott) and ignoble (e.g, segrationists with respect to Brown). However, it has not been accepted by legal scholars of any major ideological stripe or by any sitting (or as far as I know, past) member of the federal judiciary.

    And for some good reasons, among them that it would for all practical purposes end judicial review of legislative or executive acts. There are only nine Supreme Court justices and their administrative capacity to hear cases is limited. If their statement that any governmental law or policy is per se unconstitutional was insufficient to bind other courts to hold the same, it would be easy for the government to overwhelm the Court with so many cases as to make reversal by the Court on constitutional grounds impossible for most.

    Now you may believe that judicial review on the whole is useless at best. A growing minority of legal scholars would agree with that. However, I, and, I suspect, a large majority of legal scholars, lawyers and the general public, does not. Of course, I’m not suggesting that majority opinion proves that you would be wrong. However, it does suggest that much further argument on this issue may not be too helpful to anybody.

  2. Carl:

    I have a limited regard for the authority of argmuments made from “inside,” whether by sitting jurists or legal scholars who identify with them. There isn’t enough time or space for me to get into a lot of detailed epistemological issues about paradigm shift or institutional mindset. Suffice it to say I don’t trust the expertise of “experts” to define their own power.

    I have little faith in the LEGAL value of the Constitution as a restraint on the federal government. As I said before, it’s probably fulfilling the Trojan horse functions it was designed for pretty well. But the popular understanding of it in the ratification period, based on federalist public defenses of it, are quite useful POLITICALLY as a weapon against the Leviathan state (in the same way the oppositionist, or 18th century commonwealth, or anglo-republican, or whatever, understanding of the Anglo-Saxon constitution was a powerful political and ideological weapon). But this is a weapon useful only from OUTSIDE.

    The issue is really a “meta-constitutional” one, if that is a word: those who take my position are kind of in the position of Jacobites–the legal opinions of Hannoverian judges on the laws of succession aren’t worth much. We have to go back to the point at which “the bad guys won” and start over with a new set of rules. But as a set of rules, there’s something to be said for the OSTENSIBLE values of the federalist propagandists who sold us this bill of goods.

  3. Kevin?

    What in HELL are you talking about?

  4. The case for jury nullification. They may try him in a federal court, but the jurors are Californians.

    “We find the defendant not guilty due to the fact that the US Government has a bad law.”

  5. Steve:

    I think what Kevin meant in the comment to you (though he of course can explain himself better than I could) was that he considers the United States Constitution, not only as interpreted by some people today, but right from the start and as intended by its authors, to be a crock. Therefore nobody should expect him to be moved by arguments, such as mine, which are based on the Constitution. Which is fair enough. If you don’t believe in the Constitution, no argument which takes it as a premise should carry any weight. Of course, if you kinda like our Constitution, or at least what it should fairly be interpreted to be, as I do, arguments based on the Constitution being a crock, don’t carry much weight either. Such a fundamental difference makes legal argument rather pointless.

    In particular Kevin seems to find the original ratification to be procedurally offensive and the inclusion of Contracts and Takings Clauses to be substantively offensive. He points out, quite rightly, that these clauses were included to prevent state governments from defaulting on their contractual obligations to repay their debts and that the fear that state governments would do so, or encourage their citizens to do so, was a motivating factor in many other provisions in the Constitution.

    Where I, and other libertarians, or at least my kind of libertarians, disagree is regarding this as a bad thing. To the contrary, ensuring that everybody, including state governments, live up to their freely given promises is not only among the best and most important things governments can do, it is one of the very few justifications for the existence of governments at all. Hence the revival and strengthening of the Contracts and Takings Clauses is one of the pet projects of legal libertarians and is usually cheered by Reason editorials.

  6. I thought that Republicans were supposed to be in favor of reducing the size and scope of government, and returning power to a local level?

    Oops, I forgot. Without drug laws, you can’t throw several hundred thousand blacks, Latinos and other Democratic-voting-prone people in jail.

  7. From Jan, 1998:

    SAN FRANCISCO — Putting its weight for the first time behind efforts to undercut California’s voter-approved Proposition 215, the Clinton administration Friday filed a flurry of lawsuits seeking to shut down six different Northern California marijuana clubs.

  8. Is anyone REALLY surprised? The 10th amendment was effectively cancelled by the Civil War. what makes anyone think states can trump the feds?

  9. Much as I sympathize with Mr. Rosenthal politically, I’m sorry to say that his legal argument is frivolous to a degree that would justify any court to impose sanctions on him for even trying to make it.

    The United States Constitution is crystal-clear and has since its beginning been universally understood to resolve any conflict whatever between the U.S. constitution, valid federal law or even a valid federal regulation and any state law or even constitution in favor of the feds. Read the text yourself and tell me that it admits of a different interpretation:

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI. cl 2.

    Therefore, the whole arm-waving about local and state laws authorizing marijuana distribution is nothing but a red herring. Either the federal drug laws are valid, in which case they undoubtedly apply regardless of what any state law may say, or they are invalid, in which case they are unenforceable regardless of what state law may say. The question comes down solely on whether the federal drug laws are valid. Any pointing at state laws and invokation of an ill-defined concept of federalism serves no purpose but further to confuse the legally ignorant.

    Now, you may say that the federal drug laws are not authorized by the constitution and hence are invalid everywhere. That is a better argument, but only slightly so. As our authoritative interpreter of the constitution, the Supreme Court, has made abundantly clear, the interstate commerce clause authorizes Congress to pass pretty much any law it damn well pleases, unless it actually violates another specific provision of the Constitution.

    This may very well be a bad interpretation of the Constitution. In fact, I happen to think it is. In recent years, in a series of narrow, both by the content and the vote, decisions, the Supreme Court has ever so slightly veered away from that unfortunate interpretation. Maybe we’ll all live to see the day when a principled interpretation of the commerce clause removes the banning of drugs from Congress’ power.

    However, unfortunately as long as Wickard v. Filburn (holding that the Interstate Commerce Clause authorizes Congress to regulate grain grown by a farmer to feed to his own hogs on the very same farm) remains enforced law, and there is absolutely no indication it isn’t, it would take a lunatic of a lawyer to make the argument suggested above and a lunatic of a judge to uphold it. Sorry.

  10. I am reminded, sadly, of Peter McWilliam’s prosecution, and persecution, which eventually lead to his death. I hope no one thought this Republican administration would behave any better than Clinton’s in this regard.

  11. Carl:

    The Supreme Court is an “authoritative interpreter” only within the narrow exercise of its own proper powers. It is not a magisterial authority. It upholds the Constitution and federal law over state law on the same principles that ANY court uses in a conflict of laws case. But its interpretations are not binding on any other agency or court, outside the results of the particular case in question.

    The State courts can continue to convict on the basis of laws previously not upheld by the Supreme Court, and each time it is up to the S.C. to make a new decision as to uphold it the law in each particular case. The S.C.’s previously expressed opinions on the Constitution are entitled to only the same respect that, say, U.S. courts showed to the King’s Bench after Independence: that is, a learned statement of the principles of the law entitled to thoughtful consideration from a sister court.

    The President can use his veto and pardon power (e.g., Jefferson’s pardon of those convicted under the Sedition Act) to enforce his own opinions of constitutionality, regardless of the Supreme Court’s less stringent standards.

    Congress can remove matters from the appellate jurisdiction of the Supreme Court and disestablish all federal courts of appeal inferior to the S.C. In fact, some federalists argued during the ratification debates that Congress might BOTH restrict the S.C. to its original jurisdiction (mainly matters affecting foreign relations and disputes between State governments), forbear to create inferior federal courts, and leave the state courts as the supreme arbiters of most federal law within a particular state.

    Every federal and state body is, within the bounds of its own power, an independent interpreter of the Constitution.


    The Tenth Amendment may have been “trumped” by the Civil War [sic], but I owe no allegiance to a “Constitution” founded on conquest. The only legal status the Constitution ever had (and that’s iffy–I tend to go with Spooner on this one) was the sovereign consent of the peoples of the several States, assembled in their ratifying conventions. Of course, that’s just legal window dressing. In practice, all the mumbo jumbo about popular sovereignty and consent was just a charade. The Constitution of 1788 was a Federalist coup by state capitalist interests who wanted to protect “the better sort” against the tradesmen and farmers in the legislatures, and pay off war bonds held by speculators. But so long as the federal jackboots pretend to base their power on that parchment relic, I intend to hold them to the letter of it.

  12. Among other ill effects for crime bosses worldwide, legalising drugs would cripple the slush funds that certain governments have used to fund their covert activities. Isn’t that what Iran-Contra, Air America etc. taught the discerning American populace over the previous 30 years?

  13. Carl:

    Thanks for the “English Only” version.




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