cannabisnews.com: Federalism Wins










  Federalism Wins

Posted by CN Staff on December 19, 2003 at 07:55:14 PT
By Randy E. Barnett  
Source: National Review  

In a single landmark opinion, the Ninth Circuit Court of Appeals has struck a blow both for those people whose suffering requires them to use medical cannabis and for the constitutional principle of federalism. Tuesday's decision in Raich v. Ashcroft — a victory for my clients — proves that federalism is not just for political conservatives. The Court found that because the cultivation, possession, and use of medical cannabis was a completely non-economic activity and too attenuated from interstate commerce, applying the federal Controlled Substance Act to this conduct exceeded the power of Congress under the Commerce Clause.
That should surprise no one. Earlier this year, in U.S. v. McCoy, the Ninth Circuit held that federal anti-child-porn laws were unconstitutional as applied to a single photograph taken by a parent that was not intended to be sold or traded. Just a few weeks ago, in U.S. v. Stewart, the court ruled that mere manufacture and possession of a completely homemade machine gun, not intended to be sold or traded, was constitutionally outside the reach of federal gun laws. In both these cases, the Ninth Circuit found that the power of Congress over "commerce...among the several states" simply did not extend this far.In our federal system, these activities are subject to state regulation and prohibition, provided state laws do not unreasonably infringe upon liberty (as the Supreme Court held last spring in the case of Lawrence v. Texas, striking down a state prohibition on sex between same-sex couples). The photo in McCoy and the machine gun in Stewart were both subject to state laws. In Raich, however, California had chosen to legalize the cultivation, possession, and use of medical cannabis (marijuana) for medical purposes in the interest of public health. Indeed, another of my clients, the Oakland Cannabis Buyers Cooperative, whose case is now pending before the Ninth Circuit, is the officially designated agent of the City of Oakland.This is what federalism is supposed to be all about. Provided individual rights are protected, states should be free to experiment with different mixes of regulations and prohibitions. That way, we can witness the different results and reach conclusions on which policies are preferable. And those individuals who object strongly to a particular policy can move to another state where the policy is different. With the one-size-fits-all national approach, all Americans are captives of the policy choices of Congress, unless they leave the land they love.The benefits of federalism are accomplished by holding Congress to its enumerated powers, in this case the power over interstate commerce granted it by the Commerce Clause. In two controversial opinions, U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the Supreme Court found — for the first time since before the New Deal — that Congress had exceeded this power when it enacted the Gun Free School Zones Act and a portion of the Violence Against Women Act. Both cases were 5-4 rulings by the more conservative justices. Both rulings have drawn heavy fire from the academic left. Neither has been enthusiastically applied by the lower federal courts, which usually attempt somehow to distinguish between them.It is supremely ironic, therefore, that the San Francisco-based Ninth Circuit, much maligned by conservatives, is the court of appeals that is taking the Supreme Court's new Commerce Clause jurisprudence the most seriously. This medical-cannabis case illustrates that federalism is a doctrine that provides benefits across ideological lines. If this case eventually goes to the Supreme Court, we will learn whether the more conservative justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove. We will also see whether the more liberal justices will put their disdain for Lopez and Morrison above the commitment to stare decisis, which would enable them to do justice by letting California protect the liberty of suffering persons to alleviate their distress, free of interference by the federal government.— Randy Barnett, professor of constitutional law at the Boston University School of Law, is a senior fellow of the Cato Institute -- http://www.cato.org/ -- and the author of Restoring the Lost Constitution: The Presumption of Liberty, available in February. Barnett argued the case of Raich v. Aschroft before the Ninth Circuit Court of Appeals.Complete Title: Federalism Wins: Ninth Circuit Gets Medical-Marijuana RightSource: National Review (US) Author: Randy E. Barnett Published: December 19, 2003 Copyright: 2003 National Review Contact: letters nationalreview.com Website: http://www.nationalreview.com/ Related Articles & Web Sites:Raich v. Ashcroft.comhttp://raich-v-ashcroft.com/Raich v. Ashcroft in PDFhttp://freedomtoexhale.com/ruling.pdfA Landmark Victoryhttp://cannabisnews.com/news/thread17996.shtmlHome-Grown Victory http://cannabisnews.com/news/thread17994.shtmlMedical Use of Marijuana OK, Appeals Court http://cannabisnews.com/news/thread17995.shtml 

Home    Comment    Email    Register    Recent Comments    Help





Comment #5 posted by jose melendez on December 20, 2003 at 06:17:19 PT
definitions, decisions
from google's cache of: http://www.nusd.k12.az.us/nhs/gthomson.class/papers.by.gt/RepublicanvsFed.pdfFederalism and Republican GovernmentGeorge A. ThomsonJuly, 1997Dr. Herman Belz 
The greatest achievement of modern government was the expansion of popular sovereignty.From popular government came the requisite constitutional tools that expand and protect fundamentalindividual liberties. Republicanism is the constitutional expression of popular government thatassumes elections; elected governments act with the permission of the people to apply the rule of lawand protect the private and public rights of individuals.Federalism is a compromise of sovereignty between single a authority and the several regionalauthorities. The structure of federalism that would emerge in the United States Constitution of 1787broadly fits this definition. The federalism of 1787 demonstrated the inherent strife of the term; byfederating rather than consolidating the states attempted to retain the sovereignty they have heretoforeenjoyed; yet, as this paper will explore, is impossible. Ultimate state sovereignty must lie in one place.While ambiguous in its definition, federalism is useful; it has served us well.An essential of human existence lies in the dichotomy of our diversity and sameness. Asgovernment is the greatest reflection of human nature, so too are its internal conflicts. Conflicts (bothhuman and political), always boil down to the application of power of one part to the other, one personto another. Democracies and republics encourage our tendency toward this factionalism.Representative government encouraged the divisive side of human nature in its dealing within thepolity. Republican government mirrors our individuality; federalism emphasizes our commonality.also, see in: http://www.lectlaw.com/def2/t065.htm  "[T]he etiquette of federalism has been violated by a formal command from the National Government directing the State to enact a certain policy, cf. New York." United States v. Lopez*, 115 S.Ct. 1624, 1642 (1995) (Kennedy, J., concurring); see also Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993) ("direct commands to the states to regulate according to Congress's instructions" "violate the Tenth Amendment as interpreted by New York").* - http://supct.law.cornell.edu/supct/html/93-1260.ZS.htmlSUPREME COURT OF THE UNITED STATES  SyllabusUNITED STATES v. LOPEZ  certiorari to the united states court of appeals for the fifth circuit  No. 93-1260. Argued November 8, 1994 -- Decided April 26, 1995   
 After respondent, then a 12th grade student, carried a concealed handgun into his high school, he was charged with violating the Gun Free School Zones Act of 1990, which forbids "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone," 18 U.S.C. § 922(q)(1)(A). The District Court denied his motion to dismiss the indictment, concluding that §922(q) is a constitutional exercise of Congress' power to regulate activities in and affecting commerce. In reversing, the Court of Appeals held that, in light of what it characterized as insufficient congressional findings and legislative history, §922(q) is invalid as beyond Congress' power under the Commerce Clause.  Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, §922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that §922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States. Pp. 2-19.  2 F. 3d 1342, affirmed.  Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Thomas, J., filed a concurring opinion. Stevens, J., and Souter, J., filed dissenting opinions. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined: http://supct.law.cornell.edu/supct/html/93-1260.ZD.html  UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr.   on writ of certiorari to the united states court of appeals for the fifth circuit  [April 26, 1995]  Justice Stevens, dissenting.  The welfare of our future "Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, §8, cl. 3, is vitally dependent on the character of the education of our children. I therefore agree entirely with Justice Breyer's explanation of why Congress has ample power to prohibit the possession of firearms in or near schools--just as it may protect the school environment from harms posed by controlled substances such as asbestos or alcohol. I also agree with Justice Souter's exposition of the radical character of the Court's holding and its kinship with the discredited, pre-Depression version of substantive due process. Cf. Dolan v. Tigard, 512 U. S. ___, ___ (1994) (slip op., at 10-15) (Stevens, J., dissenting). I believe, however, that the Court's extraordinary decision merits this additional comment.  Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school age children is, distressingly, substantial. [n.*] Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.   Notes
 * Indeed, there is evidence that firearm manufacturers--aided by a federal grant--are specifically targeting school children as consumers by distributing, at schools, hunting related videos styled "educational materials for grades four through 12," Herbert, Reading, Writing, Reloading, N. Y. Times, Dec. 14, 1994, p. A23, col. 1.  
Article III, Section 3 defines drug war as treason. Really.
[ Post Comment ]


Comment #4 posted by purplethumbplum on December 19, 2003 at 18:14:36 PT:
The Definition of Federalism Today 
FEDERALISM: Corporate Control of Distributing Natural or UNnatural Resources, Energy and Scientific Advancements by Manipulative Polititions. Aided by Military Force for the Gain of Natural Resources to Preserve the Finantual Control over a Free Enterprise System, the People, the Constitution, and the Pursuit of Happiness. A Vicious Cycle.
[ Post Comment ]


Comment #3 posted by purplethumbplum on December 19, 2003 at 17:58:37 PT
Federalism?
federalism?
[ Post Comment ]


Comment #2 posted by BlakNo1 on December 19, 2003 at 10:12:01 PT:
false cons
The Federalist Society should make a real consevative want to puke.
[ Post Comment ]


Comment #1 posted by kaptinemo on December 19, 2003 at 08:53:15 PT:
A definition
For those who need a concise definition of the *usual* concept of federalism, I suggest you go here:NOTES ON FEDERALISM & THE
AMERICAN FEDERAL SYSTEM
http://www.polanalysis.net/CUNAPolSci201BUnitOnePg1f.shtmlThen, go to this website:The Federalist Society
http://www.fed-soc.org/ as this is the group that many poli sci wonks mean when calling someone a 'federalist'. This is the (very powerful) private organization John Ashcroft belongs to that seeks to overturn so many laws they believe are overly restrictive (of them, of course; Ashcroft has shown no reluctance to pass fascistic laws benefiting the status quo, now he's a member of it). Many of these so-called 'conservatives (actually, they are Neo-conservatives, a wholly different animal indeed) hail from the Federalist Society and call it their ideological home...and hypocritically ignore it's tenets when their precious State's Rights platform runs smack into real-world application regarding medicinal cannabis.If anything needs investigating in this country, it's this bunch...
[ Post Comment ]




  Post Comment