The Larger Importance of Colorado’s Amendment 64

At first glance, many people will assume that the passage of Amendment 64, fully legalizing the production, distribution and sale of so-called “recreational” marijuana, as just the pot smoker’s dream come true. They couldn’t be more wrong. This isn’t all about weed. It’s about Freedom from federal intrusion where they don’t belong and have no […]

Live Free Or Die
Live Free Or Die (Photo credit: jcbwalsh)

At first glance, many people will assume that the passage of Amendment 64, fully legalizing the production, distribution and sale of so-called “recreational” marijuana, as just the pot smoker’s dream come true. They couldn’t be more wrong. This isn’t all about weed. It’s about Freedom from federal intrusion where they don’t belong and have no business intruding.

The approval, by the voters on November 6th, of Colorado’s initiated Amendment 64 is a bellwether in the modern movement to end Marijuana Prohibition.  At the same time, unrealized by most of those in the Marijuana legalization advocacy movement, it sets up the most comprehensive repulsion of the over-reaching federal government on its intrusive laws and policies in every area.  It does so in a way even more important and far-reaching than Washington State’s Initiated Statute 502.

Being a State Constitutional Amendment, Amendment 64 carries a higher precedent than an Initiated Statute such as Washington’s 502; it is a change in fundamental and not just positive law.  It is The People speaking directly through their Constitution to the state legislature and to the subservient federal government:  “You will do as we direct you to do!”  The plenary power to legislate by the People is retained under the Colorado Constitution’s Article V, Section 1, clauses (1) and (2). It seems to be forgotten, too often in this country today, that the People are indeed the sovereign.

That sovereignty over-rides and controls both the legislative and administrative power of the states, and the Congress or administrative power of the Federal government and Judiciary.  That is always true in any area pursuant to powers NOT delegated to the states or to the Feds under Articles Nine and Ten of the Bill of Rights.  While both government entities may, at times, WISH to circumvent or ignore the will of the People they do so only via unlawful usurpation.

Proponents and supporters of unlawful usurpation have already started the inevitable standard and completely erroneous drumbeat of “Federal law supercedes state law,” in the press and media.  They couldn’t be more wrong.

At least, with Alcohol Prohibition, the usurpers knew full well that Congress, by law, couldn’t pass a federal statute outlawing alcohol or any plant, so they tried the route of the 18th Amendment to the US Constitution to legitimize the effort (I ask folks regularly to show me exactly wherein the Constitution ever allowed such ridiculous notions).  However, it became immediately evident upon ratification of the 18th amendment that it was impossible to enforce something that so directly conflicted with fundamental rights, liberties and peaceful human behavior.

Even so, it took another 14 years to repeal the 18th with the 21st Amendment and end Prohibition.  To finally kill it required a large state, New York, to effectively nullify the amendment, ending all support for enforcement within it boundaries, to make the issue die.

Marijuana Prohibition gained its vulture’s wings in hideous racial prejudice against Latinos, Chicanos and the African American communities in early 20th Century America.  Those communities were identified by white communities as more frequent users of Marijuana in their culture and thus a good target for enforcement in order to “better control” them.  Recognizing the failure of Alcohol Prohibition, the racist Harry J. Anslinger, following J. Edgar Hoover’s example at the FBI, devised a plan to use marijuana and natural narcotics as a springboard to more federal control and decided to feed off racist impulses in the white population to effect it.

Being out of a job at the Bureau of Prohibition, he pushed for the creation, and became the first Commissioner, of the Federal Bureau of Narcotics.  He then went on a morality (where did personal morality become a government power?) and propaganda blitz many are familiar with today, mostly due to the mass-media it produced, such as “Reefer Madness.”  That led to his drafting and pushing through passage of the 1937 “Marihuana Tax Act.” (MTA).  The MTA illuminated the way to circumvent the requirement for a Constitutional amendment and impose an unconstitutional statutory scheme instead; as if there could be a difference between the two.  It was nothing more than an attempt to control and directly regulate a plant; indirectly; a population.

The purpose of the Marihuana Tax Act (MTA) was to circumvent the US Constitution by taxing it as an agricultural product but then putting in place bureaucratic procedures making its production and distribution impossible.  Those procedures disallowed anyone from receiving the Tax Stamp needed to legally transport, distribute or sell it in the market for hemp or marijuana.  That made it impossible to cultivate and sell marijuana and hemp in virtually any form except as the bureaucrats tightened or loosened the policies and tax stamp issuance.  It took until 1969 for the US Supreme Court to strike down most of the MTA in Leary v. United States.

When that path closed, in order to keep and extend control, the Congress then passed the Controlled Substances Act (CSA).  The government and the agencies involved had learned over the decades to keep the issue in their favor, via manipulation and by tieing-up any attempts at decriminalization, through cross-contradictory drug laws and policies. They also learned the necessity of staying away from early Constitutionality questions being raised through statutory circumvention.

Furthermore, specific enforcement control of marijuana production and distribution for medial purposes has been accomplished under the guise of another US Supreme Court decision, Gonzales v Raich.  That ruling of the Court in 2005 was that the CSA was Constitutional under the Interstate Commerce Clause. However, THAT ruling directly brings us back to Amendment 64 and its vital importance to the entire Nullification movement against unconstitutional intrusions into the States.

Virtually all modern federal agency enforcement of the “Interstate Commerce” clause of the US Constitution trace their authority to ONE of the most egregious and atrocious usurpations of State Powers, Wickard v Filburn.  In that decision, the court presumes to reach the Fed’s delegated commerce power all the way down to any activity that could have any possible tie to legal interstate commerce activity.  Even the most absurd and illogical constructions one could imagine, down to plants grown in your backyard garden and consumed on your property and never sold into even state commerce, much less interstate.  And for anyone that understands the definition of commerce, it bears little relationship to all the ways the Feds have unlawfully expanded it.

However, the Amendment 64 text completely lays out a regime only for the intrastate production, distribution and retail sale of recreational marijuana and industrial hemp. Please read that sentence twice.  By definition, the interstate production, distribution and sale of recreational marijuana or industrial hemp from within Colorado remains and is illegal, even absent federal control.  That means there is no way for the courts to legitimately trace Wickard v Filburn to Amendment 64, except through continued illegal usurpation by the federal courts.

Any attempt by the Federal government to restrict a legal activity defined under state law, that has no basis for federal enforcement under Article VI, Clause 2 of the US Constitution, is itself both unlawful and illegal.  It would be the child (federal government) telling the parent (the state of Colorado) what the “house rules” are.  If it isn’t a delegated power “…in Pursuance thereof;…” as specified in Article VI, USC, there is no federal jurisdiction to intervene.

Make no mistake, the Feds, the affected agencies and many misanthropic nationalists buried throughout state and local governments, the media and populace, will attempt to deny the obvious: The federal government has no authority to strike down Amendment 64. Amendment 64 in no way violates even the confused and mis-interpreted federal laws, directly or indirectly, much less the clear reading of the Constitution.  There was no power granted or delegated to the Federal government to regulate a plant or many other things within the states that they currently enforce with state acquiescence.

Thus, it is easy to expect that we will only see lukewarm defense, if that, from many state and local officials.  Those folks are either scared to death of federal power or have been corrupted by federal control and money from rights and powers already stolen in so many other areas.  Colorado’s Governor and worse, Attorney General John Suthers, has already become a shill for the federal position in his public statements.

It will be incumbent upon all the supporters of Amendment 64, and those that support Nullification of all un-constitutional usurpation of state powers, to vocally and vigorously force the Governor, AG Suthers and all state and local officials to uphold their oath to both the STATE and Federal Constitutions in adamantly defending AND implementing 64 under the correct precedents and law.  The fear here is that Suthers and the other elected officials, will use arguments that will appear plausible, based on weak precedents but will not use the key and central (Constitutional) arguments. as outlined herein.   Much of it may be because they do not understand it themselves and require education from the citizens.  Or, they do and are just corrupt.

If the Feds fail to stay out of an issue beyond their jurisdiction and attempt to strike down Amendment 64, the last due process path is still left open for the People and the State Of Colorado.  Or, for that matter, any state similarly situated: Active Nullification and Interposition.  The State Legislature has only to pass a specific ACT Nullifying any such unlawful Supreme Court decision and directing the Governor and all state and local officials to follow what New York did in Alcohol Prohibition, ignore the Feds in any attempt to enforce federal law within the state on Marijuana Prohibition.  If the Feds get nasty and try to enforce it anyway, then the state Nullification law may (or likely, must) include specific arrest and penalties for federal agencies or Law Enforcement Officers acting against state law.

Amendment 64 opens the door to strike down, specifically Nullify through legislative action or simply ignore, a whole host of precedents where the Feds have attempted to intrude and seize control of rights and powers that only belong to the People and the States.  And all of them patently Unconstitutional.

What are you going to do to protect YOURSELF and your state?