State's medical marijuana proposition doesn't trump federal regulations (was Re: !!! Nov-L: Calif. City Plans Marijuana Giveaway (fwd))
Steve Schear
schear at lvcm.com
Thu Sep 12 19:17:40 PDT 2002
>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
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