By Mark David Blum, Esq.

Yesterday, the Ninth Circuit Federal Appeals Court ruled that, “a California woman whose doctor says marijuana is the only medicine keeping her alive can face federal prosecution on drug charges. That court relied on a June of 2005 Decision of the United States Supreme Court which decided that the Constitution’s ‘Commerce Clause’ empowered the Federal government to enact laws which strip State citizens of their State’s Rights. This all emanates from the Neo Conservative movement and their court packing scheme. Theirs has become a warped political perspective that begins with the principle that only those rights set forth in the constitution belong to the People and if not so mentioned, they do not exist.

Such an analysis is contrary to every stated intention by every Founder. They were not afraid of the People; theirs was a fear of tyrannical government. Our founding documents were written specifically to diffuse and limit power of government; not the People. The constitution was a document of limitation and those powers enumerated therein are specific and finite. For the activist judges in the conservative wing of the current Court, all these founding principles do not apply and all power in the nation comes from government to the People. Their theory and perspective is flatly wrong. More importantly, it is dangerous.

Remember the Declaration of Independence’s famous line, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Our Founders’ radical change to the then current political theory was the recognition that “power for governing” arises from below; from the People. Authority does not come from the ‘State’ but rather from the governed. This did not change when the Constitution was written; the theory was codified AS the Constitution. This is the uniqueness of the American experiement; never before or seen since. Here, we have a political construct that presumes as a natural and God given a priori knowledge that every liberty imaginable emanates from me and only those I choose to surrender for the benefit of the greater good are laws and rules to which I too must adhere. That is the social contract of my Forefathers and Founders and I expect the current generation to maintain that principle.

Central to our constitutional history is the premise that the Founding Document guarantees to all Americans, born and naturalized, certain basic rights and freedoms. It is the responsibility of the Federal Executive and Judiciary to see that these basic laws and protections are available to every American citizen. That is the sole mission of the Federal Government and for no other reason does it exist.

Likewise a vital plank of our constitutional republic is the understanding that while we are all American citizens, we are likewise citizens of our respective States and Commonwealths. Nowhere is a State prohibited from providing greater rights and benefits than assured by the Federal Constitution. The Federal Constitution establishes the bare minimum. States are free to go above and beyond that.

California and nine other States legalized for its citizens the use of marijuana for treatment of pain and suffering. Federal law makes the possession, distribution, and sale of marijuana a felony. Setting aside the “drug war” argument: The Supreme Court stripped away the last vestiges of ‘States Rights’ by applying their misguided theory of power distribution and then used a strict read of the constitution to over rule California’s law.

It is the original compact between all the States and affirmed nearly every time the question came before the Supreme Court, that the Federal Constitution creates a set of minimum rights and protections available to every American. This was later codified in the 14th Amendment. There are absolutely NO prohibitions found anywhere in the federal constitution that say a State cannot recognize MORE rights and freedoms than those guaranteed by the Federal constitution. Meaning, that the federal constitution sets the floor below which no State can go but above which every State is welcome to rise.

In one of the most backwards reasoned and appalling decisions, the Supreme Court relied upon one of the narrow enumerated powers of Congress and applied the principles of the Supremacy Clause and said Federal Law trumps State Law. The conservative majority started backwards and assumed that power started at the federal level and trickled downward. They rationalized that since Congress had not surrendered control over marijuana, that Congress and not California had retained the power to decide whether Californians can possess marijuana.

The Commerce Clause in Article I of the Constitution is an enabling clause. Government is not an ‘entity’ but rather an operation and means toward an end. To say that a provision written to enable Congress to regulate commerce between the States can be expanded to overpower a State’s authority and the will of the People who live there, strips the States of all individuality and power.

Presently, New York’s legislature is pondering the question of medical marijuana. You are a citizen of New York and a human being entitled to the privacy of your body and your life. Do you think that when federal troopers come and arrest you, that you can later just tell the jury that you were behaving lawfully under New York law? The Federal Judge will not even allow you to tell the jury that the marijuana you possessed was for your own use and lawfully possessed by prescription. You will be branded a trafficker and your life ruined.

Asking 21st century Americans to live under rules crafted by the hands and hearts of 18th century philosophers is akin to asking a grown man to wear the clothes he wore as a child. Society changes. Thinking changes. So too do politics, economies, and science. We cannot today be held to centuries old thinking and dogma. Our constitution was written to be a living document subject to changing theories and attitudes. We have to accept that. Failure to do so would bind us in slavery to our faults and mistakes and block our growth and maturation as a People and as human beings

Remember this next time you hear someone mumbling about activist judges. Seems to me the real activists are in place right now and destroying our democracy, one piece at a time.