POT AND THE CONSTITUTION

At first glance, one would think that there was little or no connection between marijuana and the United States Constitution. But there is, and because of it San Francisco’s "Guru of Ganja," Ed Rosenthal, faces nearly 100 years in a federal prison.

This story begins in 1996 with Proposition 215 in California, an Initiative that purportedly legalized use of the weed for medical purposes. Since 1996, several other states have "legalized" medical use of marijuana, allowing the very ill to smoke, and even grow, the weed if their physicians recommend that treatment.

Because Proposition 215 provided only for "legalization," the details of who could cultivate marijuana, under what circumstances, in what locations, where and to whom they could sell it, who was eligible to purchase it, the nature of a physician’s "prescription," and many other specifics, have been provided by local officials and by operation of the free market. In other words, in California medical use of marijuana is "legal," but most everything else about that use is informal. No better example of that informality can be found than Rosenthal’s case. The City of Oakland – Jerry (Moonbeam) Brown, mayor – had deputized Rosenthal as an official supplier to a local marijuana cooperative.

Not surprisingly, Proposition 215 and its aftermath has had a polarizing effect not just in California, but nationally. The pro-pot forces have rejoiced, while the anti-pot crowd has boiled. People who believed in "states rights" (actually "state power," under the Tenth Amendment: "The powers not delegated to the United States [the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people") saw Proposition 215 as an appropriate exercise of that reserved state power. Others, adverting to the core constitutional principle of federalism – especially the primacy of federal law under the Supremacy Clause – read the Constitution’s Article I, Section 8, Paragraph 3, and the many cases decided under it, to render Proposition 215 unconstitutional: "The Congress shall have power . . . to regulate commerce . . . among the several states . . . ."

Enter the Drug Enforcement Agency, armed with the Constitution’s Interstate Commerce Clause, pursuant to which the federal government has enacted a statute making virtually everything to do with marijuana illegal and thus criminally punishable. The government’s position has been succinctly stated by the DEA spokesman in San Francisco: "Regardless of the individual or institution, cultivation and distribution of marijuana is illegal, and anyone who engages in it is in harm’s way." (As an afterthought, he noted that any property used to grow the weed – even local or state government buildings – would be subject to forfeiture under federal law). This position of the government is what caused "deputy" Rosenthal’s indictment and conviction for cultivation of marijuana. As usual, the defendant will appeal. Among his arguments will doubtlessly be "states rights," but it will fail because in any conflict between state and federal law, the latter will prevail if it is enacted pursuant to Congress’ legislative powers.

Whatever one thinks of the Supreme Court’s long line of decisions establishing the scope of the Interstate Commerce Clause’s power, the federal anti-marijuana laws are well within that power – as a review of just some of the Court’s decisions readily demonstrates.

The Constitutional-fact-of-life is that Congress possesses the power to make criminal virtually anything relating to interstate transactions. Mail and wire fraud are obvious examples. The Mann Act outlaws the transportation across state lines of women for immoral purposes. The Dyer Act criminalizes the interstate shipment of stolen vehicles. The so-called Lindbergh Law punishes kidnapping related to interstate transportation. It is a federal crime for someone convicted of a felony to receive or possess a firearm that at any time had been transported in interstate commerce. The Supreme Court has deferred to Congress in enacting criminal statutes pursuant to its power under the Interstate Commerce Clause by going so far as holding that loan sharking was an appropriate federal crime – because Congress could have concluded that even purely intrastate conduct somehow affected interstate commerce. This case – Perez v. United States – is significant because it dealt with an activity, money lending, traditionally within the ambit of local (i.e., state) police power. In Perez, the Supreme Court signaled that no longer would it halt the Congressional power to make criminal laws at the door of what previously had been areas reserved to the states under the Tenth Amendment.

This means that while proponents of California’s Proposition 215 and comparable laws in other states making the use of marijuana legal for "medical purposes" – as well as the soon-to-appeal "Guru of Ganja" – may argue that "states rights" of the Tenth Amendment trumps the Interstate Commerce Clause’s power to make use of the weed illegal, they are merely blowing smoke.