TENTH AMENDMENT - UP IN SMOKE

The United States Supreme Court recently issued a stay which prevents the
Oakland Cannabis Buyers' Cooperative from providing medical marijuana to
those who qualify according to California Law 11362.5, sometimes called the
Compassionate Use Act and better known as Proposition 215.

Federal law states that there is no medical use for marijuana and any use of
it is illegal under federal statute. About that there is no disagreement.
What is in dispute is related to whether or not 535 members of Congress have
the right to make medical decisions for every single man, woman, and child
in America and overrule the medical judgement of physicians. Part of the
dispute is over the disagreement about the medical efficacy of this
innocuous weed. Also, part of the disagreement is over whether or not
individuals have the right to use whatever substance they wish if they feel
the use of that substance benefits their lives. But neither of these issues
was at issue before the Court: the issue it faced was whether the federal
government has the right to overturn a state law enacted by initiative. Can
Congress tell the people they do not have a voice in making the laws for
their state, or tell a state legislature that they, too, do not have the
right to make laws for their state if those 535 people in Congress do not
like the laws they pass?

In the last few years, the people of seven states and the District of
Columbia have passed propositions which would allow the use of marijuana for
medical purposes. In addition, the Hawaii legislature passed similar
legislation. All of these laws were passed by significant majorities and
have the support of the majority of the voters. The only significant
opposition to implementation of these laws has come from prosecutors, police
officers, and the federal government. Michelle Kubby, wife of the
Libertarian candidate for governor of California in 1998 and noted medical
marijuana advocate, Steve Kubby, have stated, "This is no more about
marijuana than the Boston Tea Party was about tea." She is right. It is not
about what is good or bad, it is about power and control. This is really an
issue that goes to the very roots of our constitutional government. It is an
issue that will have far reaching effect on whether or not the Constitution
is still the basis of our government or if we are now a government of the
Congress, by the Congress and for the Congress.

The law allows patients to have an unlimited supply of marijuana for any
medical purpose they desire as long as they have a doctor's recommendation.
This complicates drug enforcement because prosecutions for sale of marijuana
are not based on actually catching people selling. They are based on the
quantity of marijuana possessed or how it is packaged and stored: if the
quantity of marijuana in possession of an individual exceeds a certain
amount, the law presumes that it was intended for sale and that its owner is
a drug dealer. If there were a legitimate, legal use for marijuana, mere
possession could not imply intent for illegal sale. Prosecutors would
actually have to prove that marijuana was actually sold for non-medical use.

California's constitution specifies that initiatives passed by the voters
become laws and that no government entity may disobey or ignore them, but
police and prosecutors refuse to implement Proposition 215. Nearly every
day, ninja-suited SWAT teams break into the homes of people who have harmed
no one and destroy or seize their property for the crime of marijuana
possession. California police argue they are making no judgment and will let
the courts settle the issue.

That is what the case that the Supreme Court will hear is about. The Court
will have to decide if the Constitution of the United States and the Bill of
Rights have any meaning in the 21st century. Why is this an issue over the
U.S. Constitution? Because the Constitution is a limiting document which
grants certain powers to the federal government and specifically denies the
federal government the authority to do others.

Stated simply, the Constitution enumerates the powers of the federal
government and then plainly states that those enumerated powers are all that
the federal government has. Other powers belong to the states or to the
people. In none of those enumerated powers does it give Congress the power
to regulate what plants may be grown, what medicines may be used, or what
laws a state or people of a state can pass, as long as those laws do not
take away the rights and responsibilities of the Constitution. Plainly, any
regulation of this sort must be done at the state level, if at all.

The Court would do well to remember the words of James Madison, the father
of the Constitution and the principle author of the Bill of Rights: "The
ultimate authority... resides in the people alone." If the people can no
longer hold an election and change the laws, being forced to suborn their
wishes to the Congress, they no longer hold the ultimate authority. They are
mere chattel of those who rule them. They are no more than slaves.

If the Supreme Court holds that these elections can be overturned by the
will of Congress, which election will be next? The great American experiment
will have failed. We will have allowed ourselves to once again be ruled by
an all-powerful government instead of remaining an all-powerful people.

Richard E. Pearl Sr.