Is Smoking Pot Unconstitutional? In August former administrators of the DEA sent a letter to Attorney General Eric Holder asking him to sue the State of California if Proposition 19 passes in November. That proposition would legalize the possession,production, and sale of marijuana. The letter argues that Prop. 19 would violate the Supremacy Clause of the U.S. Constitution.
The former DEA heads would appear to be on solid legal footing, because of the 2005 Supreme Court decision Gonzalez v. Raich, regarding California Medical Marijuana laws. I discussed this decision in a prior post.
The court held that Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California’s Compassionate Use Act.
Justice Clarence Thomas dissented in that case, saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”
Justice Thomas is right. There is no interstate commerce issue here, or at least there shouldn’t be. It is axiomatic that Californians will not be allowed to transport pot across state lines. How then does the federal government stick its nose into state business and ignore half the Bill of Rights?
I don’t know, but I did find a post from 2003 by Susan Shelley that asks this question:
“…if a simple federal law can ban marijuana, why did Prohibition of alcohol require a constitutional amendment?”
It sure looks like the Tenth Amendment might be the answer:
“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.”
What bugs me is how this government ever granted itself the power to decide whether its citizens are permitted to smoke marijuana in the first place. This is the real outrage.
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