By Mark David Blum, Esq.

The first casualties of war between the Federal government and the States were suffered at Fort Sumter. Today they are being taken in Federal Courtrooms. Instead of Blue Uniforms firing upon Grey, we have suited Federal Prosecutors throwing Federal Supremacy at orange jumpsuited defendants. Instead of Andersonville, we have a fast growing industry of public and private federal prisons.

Convicting Ed Rosenthal should be the shot heard around the Nation. In a nutshell: California and ten other States lawfully opted to provide for their citizens, rights and benefits beyond those provided under Federal law. In response to these States providing greater rights and pain relief to their citizens, the federal government opted to round up these Americans and prosecute them under Federal narcotics trafficking laws; the toughest in the world. Facing 10, 20, and even life long sentences, these Americans are guilty of doing nothing more than what is legal in their home State.

Ed Rosenthal is one such casualty. Establishing a legal business in the State of California to grow and provide marijuana for medicinal uses at lawfully registered clinics to be used by lawfully entitled persons offended federal prosecutors. Arresting Rosenthal and charging him with narcotics trafficking laws, he was ultimately convicted. During his trial, he was not allowed to tell the jury in his defense that his actions were lawful and licensed in the State of California. The Judge was offended by the prosecution but was stuck with the law. Rosenthal was sentenced to one day in jail.

The conviction was overturned on appeal because of juror misbehavior and the case was returned for re-trial. It mattered not that the Judge told prosecutors Rosenthal would not serve any more time if convicted again. Federal prosecutors insisted on spending our tax dollars to chase this heinous criminal one more time. Again as before, he was not allowed to tell jurors that he was engaged in lawful activity under California law and again as before, Rosenthal was convicted of three federal drug felonies.

When last faced with this question, the Supreme Court dashed our Ship of State against the rocks of meaninglessness. Our once proud and central Constitution was completely set aside on the whims of a right wing conservative majority of the Court; each of whom abandoned their basic core principles and opted instead to fundamentally restructure our system of checks and balances.

(The Majority Opinion. The Dissent).

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. It is the arbiter for keeping the peace and pathway for commerce and communication. Elected officials and their appointees are not our parents.

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 and are encouraged to do so.

The Tenth Amendment to the Constitution makes that premise clear. In recognizing that only certain powers had been surrendered by the People and the States for the greater good in the creation of a Federal Government, our Founders made it clear that but-for those enumerated powers and limitations, EVERY other right and freedom belongs to the States and to the People.

Thanks to the Supreme Court and zealous federal prosecutors, the rules of the game have changed. No longer is a State free to regulate the health, education, welfare, and policing of its citizens. Now all States must surrender any rights and benefits conferred which are above and beyond protections recognized by Congress. Since Congress cannot even shield Humvees in Iraq, how much can we trust them to protect our rights as New Yorkers? The Supreme Court has given free reign to the Federal Government to dismantle every right in every State that is more protective than how the Federal agents interpret them. It is baffling that any American would ever want to surrender their rights under the Second Amendment.

Being a New York citizen raises an interesting question. New York has laws and rules which provide greater protections than under Federal law. A classic example comes by way of how snitch testimony is handled. Under Federal law, any idiot can climb up on the witness stand and say he did this or that with you and if the jury believes the testimony, kiss the next 20 years of your life goodbye. The U.S. Attorney is not required to provide any corroboration to secure a conviction. Under New York law, the prosecution would have to have other independent corroboration before it could hang a conviction on you. This is but one lifeline upon which we pray State prosecutors never convince a federal court that state prosecutors only be required to meet the Federal standard.

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. When ninja clad federal agents come and arrest you, you cannot later tell the jury that you were behaving lawfully under New York law. The Federal Judge will not 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.

Loyalty matters in government. The problem is resolving to what principles are we loyal. Always, the answer is the same: We have to be loyal to that with which we are stuck, the United States Constitution. In whole and in its several parts, the Constitution is a settlement agreement. Under no interpretation or historical understanding was the document ever intended to create an oppressive and overpowering federal government that can strip citizens of rights.

If you ask me, someone should send a bill for the costs of trial and attorneys to the Attorney General. Someone way upstairs insisted on Rosenthal’s prosecution. Maybe these prosecutions are the end result of when the Attorney General starts circulating a loyalty hit list.