Criminalizing California

Two California men are looking at mandatory 20-year prison sentences after a federal jury in Fresno convicted them Thursday of running a medical-marijuana operation.

California voters legalized medical marijuana in 1996. However, the federal government believes its own law banning marijuana takes precedence over anything the people of California might decide, in their looney and liberty-loving way, to put on the state ballot and pass overwhelmingly.

In fact, the Tenth Amendment to the U.S. Constitution reserves to the looney and liberty-loving people of California the power to legalize marijuana, because the Constitution does not give the federal government the power to ban a substance that is made, distributed and used within state borders.

That's why, back in 1919, Prohibition required a constitutional amendment.

Perhaps anticipating the argument, federal prosecutors in this case made a special point of noting that the business run by Luke Anthony Scarmazzo and Ricardo Ruiz Montes was illegal under California law as well as federal law.

"California's medical marijuana law clearly sets out that making a profit selling marijuana is illegal," U.S. Attorney McGregor Scott told reporters.

Anyone who has ever run a business in California can tell you that the state takes a very dim view of making a profit.

Regardless, the U.S. Constitution doesn't give the federal government the power to do what it has been doing under the Controlled Substances Act for thirty-some years, which is usurp the power of the people of each state to pass their own laws regulating matters of general health and welfare.

You might be interested to read "Marijuana, Prohibition and the Tenth Amendment" at www.SusanShelley.com.

Copyright 2008

Notes:

The Tenth Amendment to the U.S. Constitution reads, "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."

The 18th Amendment, ratified in 1919, declares, "the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

The 21st Amendment, ratified in 1933, states, "The eighteenth article of amendment to the Constitution of the United States is hereby repealed."

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Judging same-sex marriage

The California Supreme Court tore open the debate over same-sex marriage today with a ruling that struck down a state law banning gay marriage. "We cannot find that retention of the definition of marriage constitutes a compelling state interest," the court said, "These statutes are unconstitutional."

California voters will have an opportunity to vote on a state constitutional amendment that will limit marriage to opposite-sex couples, but if it doesn't pass, same-sex marriage will be legal in the Golden State.

Good luck to any other state that refuses to recognize marriages performed in California. The U.S. Constitution requires all states to give "full faith and credit" to "the public Acts, Records, and judicial proceedings of every other State." It's in Article IV, Section 1.

Lawyers may try to persuade the U.S. Supreme Court to interpret the full faith and credit clause to mean that states don't have to recognize California's marriages, but that would require the justices to find that the Constitution means exactly the opposite of what it says.

Granted, it wouldn't be the first time. But people who oppose gay marriage are more likely to seek an amendment to the U.S. Constitution to state unambiguously that marriage in the United States is between one man and one woman.

Today's ruling in California is the latest example of the uncontrollable consequences of the Incorporation Doctrine, the Supreme Court's interpretation of the Constitution that says some rights are so fundamental that no state can be permitted to infringe them without a compelling reason.

Under the original interpretation of the Constitution--in other words, what people understood it to mean when they agreed to be governed by it--the Bill of Rights did not restrict the powers of the state governments. It only limited the powers of the federal government.

After the Civil War the nation adopted the Fourteenth Amendment, which banned any state from denying due process of law to any person, but in a long series of decisions the Supreme Court said this still didn't mean the Bill of Rights applied to the states.

Once everyone who debated and voted on the Fourteenth Amendment was dead, the Supreme Court began to change this interpretation. Early in the 20th century the Court ruled that freedom of speech and the press were so fundamental to the conception of due process of law that they had to apply to the states through the Fourteenth Amendment.

Very gradually, the Supreme Court incorporated almost all of the Bill of Rights into the Fourteenth Amendment. It took decades. The Sixth Amendment right to trial by jury was not deemed "fundamental" enough to be binding on the states until 1968.

Now, here's the catch.

The Supreme Court has held that fundamental rights may be infringed by the states if the states can show a compelling reason. The states may have a rational reason for such a law, the Court has said, but that's not good enough to justify the restriction of a fundamental right. The reason must be compelling.

But what's compelling to you may not be compelling to them. What's compelling to Justice John Paul Stevens may not be compelling to Justice Antonin Scalia. And the selection of "fundamental" rights is equally subjective.

So when the California Supreme Court declared today that there is a fundamental right to marry the person of your choosing and the state has no compelling interest in limiting marriage to opposite-sex couples, the justices were engaging in the kind of subjective balancing act that the U.S. Supreme Court has been performing for something like eighty years.

This kind of constitutional interpretation was the basis for the desegregation decisions of the 1950s and all the decisions striking down state laws that discriminated on the basis of race or gender. It was the basis for all the decisions guaranteeing the right to an attorney, trial by jury, and the right against self-incrimination. It was the basis for all the Court's rulings limiting the power of police to search your home without a warrant. It was the basis for all the decisions establishing, or limiting, a right to privacy.

We have to face the fact that for the entire span of our lifetimes, we have relied on the U.S. Supreme Court to update the Constitution for us. We have not taken responsibility for amending it to say what we now think it means.

That's why judges--and not elected officials--have the power to legalize or ban abortion, to establish or strike down affirmative action, to permit or abolish the death penalty, and to allow or forbid gay marriage.

You might be interested to read "How the First Amendment Came to Protect Topless Dancing," which is an essay published as an appendix to the novel "The 37th Amendment." Or read a short summary of it at this link.

You might also be interested in "Judicial Activism and the Constitutional Amendment on Marriage" as well as "A Retirement Plan for Sandra Day O'Connor" and "Why There is No Constitutional Right to Privacy, and How to Get One" at www.SusanShelley.com.


Copyright 2008

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Hillary Clinton and the big refund

If Senator Hillary Clinton seems unusually reluctant to read the handwriting on the wall and withdraw gracefully from the presidential race, the reason might be money.

Specifically, the money she raised for the general election.

You might remember that in the long-ago days of early 2007, Senator Clinton asked her donors for $4,600, even though federal law limits an individual's contributions for the primary election to $2,300. The second $2,300 was for the general election, the Clinton team explained to the donors, and why not collect it early and show the political world some real financial muscle?

The trouble is, the Clinton campaign is required by federal law to return those $2,300 checks for the general election campaign if Senator Clinton is not the Democratic nominee.

It's possible, of course, that the general election money is locked away in a separate account and it will be no problem at all to comply with federal law and send those checks right back to the donors who wrote them.

I think we're all in agreement that this can safely be ruled out.

It's hard to believe that Hillary Clinton loaned her campaign $11 million from her personal funds while there was a single uncashed check lying around the office.

That means she has to replace those general election funds, and fast, before she gets out of the race and the nice folks from the Federal Election Commission stop by her Senate office to say hi.

This would explain her plea for funds during her election-night speech in Indiana, and the fundraiser she attended the next day, and the conference call her husband reportedly held with donors on Thursday.

It's a pain to pay campaign debt, but it's a crime to use general election donations for a primary.

How much does she have to refund? It may be difficult to determine. This is an excerpt from Kenneth P. Vogel's story in the Politico, April 2, 2007:

Things could be particularly tricky this presidential cycle, though, since it’s the first in which multiple candidates are expected to raise money for both the primary and general election. That effectively doubles the amount candidates can accept from each donor to $4,600 -- technically $2,300 for the primary and $2,300 for the general election.

Candidates may pad their fundraising hauls by including their general election contributions in proclamations trumpeting their fundraising success. But [PoliticalMoneyLine's campaign cash tracker Kent] Cooper said it will be important for reporters to separate out such contributions, since candidates who don’t win their party’s nomination will have to refund donations for the general election.

The FEC doesn’t have a system for quickly distinguishing such funds, but it’s working on one, said spokeswoman Michelle Ryan.

So there you have it. If Hillary Clinton stays in the race all the way until the convention in Denver, she can stall the day of financial reckoning until the very moment the delegates nominate Barack Obama for president.

Between now and then, you may hear teams of political experts declare that they don't know why Senator Clinton is staying in the race, they don't know why she's risking her reputation and her political future, and they don't know why she won't listen to all the advisors who are giving her such good advice.

They may not know, but you will.


Copyright 2008

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The Clintons knife each other

Hillary Clinton's victory speech in Indiana Tuesday night included a gracious thank-you to her supporters.

The senator's daughter and husband stood behind her while she acknowledged a long list of elected officials who had endorsed her and campaigned for her in Indiana and North Carolina.

Then she talked about her family.

"Didn't Chelsea do a great job?" she asked the crowd, to a thunderous ovation.

"And I know a lot of people enjoyed seeing my husband again," she said.

Yeee-ouch!

No "thank-you", no "great job," no stream of praise for his accomplishments, no faux affection for the cameras.

She didn't even include herself among the people who enjoyed seeing him.

He didn't look any too happy about it.

Revenge was quick.

This morning, Senator George McGovern spoke to the press about his decision to switch his support from Senator Clinton to Senator Obama. He had a conversation with Bill Clinton, McGovern said, and the former president made no effort to change his mind. "He just wanted me to know that he thinks that Hillary has made a great race and it's up to her to decide when she leaves," McGovern said.

Yeee-ouch!

If Chelsea can patch them up this time, she ought to get a talk show. She'd beat Dr. Phil like a drum.


Copyright 2008

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