State's medical marijuana proposition doesn't trump federal regulations (was Re: !!! Nov-L: Calif. City Plans Marijuana Giveaway (fwd))

[Steve Schear]

>Though the council passed a resolution denouncing the raid, there is no
>official city sponsorship of the event - council members and medical
>marijuana advocates are simply acting on their own in a public space,
>said
>City Attorney John Barisone.
>
>DEA spokesman Richard Meyer was surprised at the plan.
>
>``Are you serious? That's illegal. It's like they're flouting federal
>law,''
>he said. ``I'm shocked that city leaders would promote the use of
>marijuana
>that way. What is that saying to our youth?''

[The following is my response to a related article (unfortunately not 
on-line) from the Opinion section of the San Jose Mercury News by Larry N. 
Gerston, a professor of political science at SJSU and political analyst at 
NBC3, wherein the question is asked whether we should have obey laws we 
don't like.

Larry,

Your September 11 SJMN op-ed piece, "State's medical marijuana proposition 
doesn't trump federal regulations," made some good points regarding the 
current balance of power between the states and federal government and the 
importance of obeying laws. And in a perfect world I'd agree, but this is 
not that world. Sometimes civil disobedience or even criminal action is 
needed to pressure legislators or the courts to doing what's right. 
Governmental systems have an inherent mandate to increase power and rarely 
give it up. When those in authority encounter impediments they will often 
seek a means, occasionally illegal, to achieve their ends. Our system of 
checks and balances (including the states) was created to thwart the most 
dangerous form of anarchy, anarchy from within. Whenever this system fails 
all our liberties are at stake. Such is the case with the apparently 
illegal enactment of the 14th Amendment upon which is based much of current 
federal authority.

At the close of the Civil War the Republican controlled Congress sought to 
legally "lock in" the expansion of federal authority it had gained as a 
result of battlefield victories with Joint Resolution No. 127 proposing a 
14th Amendment. But once again the Southern States stood in their way. 
Although President Jackson (who succeeded Lincoln) and Congress had 
acknowledged the legitimacy of the these duly elected governments, in their 
frustration the 39th Congress voted, on December 5, 1865, to deny seats in 
both Houses to anyone elected from the 11 southern States. They also 
ejected New Jersey Senator Stockton who opposed the bill and would have 
cast the deciding ballot, and refused to count the denied southern 
representative's numbers when computing the two-thirds majority 
Constitutionally required for passage. Whether it requires two thirds of 
the full membership of both Houses to propose an Amendment to the 
Constitution or only two thirds of those seated or two thirds of those 
voting is a question which it would seem could only be determined by the 
Supreme Court.

Congress cared little about these "minor irregularities" in the proposal 
and voting process, they proceeded to submit the amendment to the States 
for ratification. But, surprise, things did not go well. After some 
legislatures first ratified and then recanted, in the end 16 of the 37 
states rejected the measure. When the State of Louisiana rejected the 14th 
Amendment on February 6, 1867 [making the 10th State to have rejected the 
same or more than one-fourth of the total number of 36 States of the Union 
(as of that date) leaving less than three-fourths of the States to possibly 
ratify the same] the Amendment failed. It could not have been revived 
except by a new Joint Resolution of the Senate and House of Representatives 
in accordance with Constitutional requirement.

Congress decided that states legislatures were not free to change their 
minds on ratification and ignored all those who did so. On the 20th of July 
1868 Secretary of State Seward issued his proclamation of ratification of 
the fourteenth amendment, in which, after reciting the law of 1818 
requiring him to publish the ratification of an amendment to the 
Constitution in the newspapers. However his language in the proclamation 
shows very clearly that Mr Seward had his doubts about the 
Constitutionality of the ratification process, and he takes pains to 
relieve himself of any responsibility by declaring that - "Neither the act 
just quoted from, nor any other law, expressly or by conclusive 
implication, authorizes the Secretary of State to determine and decide 
doubtful questions as to the authenticity of the organization of State 
legislatures or as to the power of any State legislature to recall a 
previous act or resolution of ratification of any amendment proposed to the 
Constitution".

The Senate brushed aside Secretary Steward's concerns and on the next day 
Senator Sherman offered a Joint Resolution declaring that three fourths and 
more of the States had ratified the proposed Amendment, and therefore that 
it was a part of the Constitution. Secretary Steward was pressured into 
certifying the Amendment as passed. In a Message to the Senate (Senate Ex. 
Doc. No. 57 of the 39th Congress, 1st Session); President Andrew Johnson 
commented on the "Concurrent Resolution" of July 21, 1868 "In this matter 
nothing has happened to change the mind or solve the doubts of the 
Secretary, but as an executive officer, he was compelled to obey a joint 
resolution of Congress whatever his own opinion might be of the power of 
Congress to pass it, that being, as I have said above, a judicial question."

Finally, there are no records showing that the Resolution was ever 
submitted to the President of the United States for his approbation. 
According to Article V of the Constitution for the United States; the 
Resolution is governed by the procedures of U.S. Const., I:7:3 - "Every 
order, RESOLUTION, or vote to which the concurrence of the Senate and House 
of Representatives may be necessary, (except on a question of adjournment) 
SHALL BE PRESENTED TO THE PRESIDENT OF THE UNITED STATES; AND BEFORE THE 
SAME SHALL TAKE EFFECT, SHALL BE APPROVED BY HIM, or being disapproved by 
him, shall be re-passed by two-thirds of the Senate and House of 
Representatives, according to the rules and limitations prescribed in the 
case of a bill." We can conclude from the above Message that the President 
would have "Vetoed" the Resolution. If the Resolution was "Vetoed" [and as 
there are no Records showing that either House of Congress voted to repass 
the Resolution over the Veto], we can conclude that the Concurrent 
Resolution of July 21, 1868 failed.

To all the issues the courts have been mute, however, declaring in 
Unpublished Opinions that all questions involving the 14th Amendment are 
"Political Questions" to the Courts. Its this sort of dereliction of duty 
by the courts that does mortally would our Constitution.

So, in response to you question whether one is free to ignore certain laws, 
I bow to a basic doctrine adopted by our courts:
16th American Jurisprudence 2d, Section 177, late 2d, Section 256: "No one 
is bound to obey an unconstitutional law and no courts are bound to enforce 
it."

steve