By Mark David Blum, Esq.

It was just one month ago today we reported in detail of the assault upon the States and the Rights, Privileges, and Immunities of residents of the Various States as they came into conflict with the Federalists. Specifically, the discussion centered around California’s legalization of the medical use of marijuana. More specifically still was the insistence of Federal Prosecutors to destroy the lives of California citizens who were growing and distributing marijuana in accordance with California law. Even when told by the Federal Judge that individuals would do no time for such convictions, zealous Federal prosecutors continued their attack on the person.

Now comes a very real dilemma for those still addicted to Prohibition. The State of New Mexico has joined 13 other States in legalizing the medical use of marijuana. Only here there is a twist. That same law that enables the use of the drug in pain and disease management, requires the State of New Mexico itself to both grow and distribute the drug.

As a matter of reason and rationality, New Mexico is on the right path. By the State growing and distributing, citizens who use the drug can be assured of its quality, that they are getting what they are buying, government can control toxicity and assure that organized crime is out of the loop. Oh yeah, and there is the tax benefit as well.

But query the local United States Attorney; the one who like our local Chief Federal Prosecutor, apparently is not on the disfavored list at the Department of Justice. An interesting situation exists now because no longer are private citizens becoming engaged in the manufacture and distribution of a legal product in New Mexico, but it will be the government itself.

Is Governor Bill Richardson and the entire executive Branch of the State of New Mexico going to be subject to a midnight no-knock warrant by ninja clad federal agents? Will the State Legislature be summarily subjected to 20 years to life for engaging in a conspiracy to distribute a controlled substance? What about the executive agency created to actually grow, monitor, and distribute – are the folks who work there going to watch their grandchildren mature from behind bars? Will the Federal government nationalize the militia in New Mexico and attack the State run farms. Will New Mexico defend itself?

Section 841 of 28 United States Code is the favorite drug conspiracy statute relied upon by federal prosecutors to nab anybody who remotely may have been involved in a distribution network. Since they have seen fit to apply this section to law abiding citizens in California, it is incumbent upon the federal government to apply their insanity evenhandedly. Arrest New Mexico. Install martial law. Run the State by federal fiat.

As for me, I see not only opportunity but a real funny side to this. Federal prosecutors are in a real bind in New Mexico and do not have underfunded and isolated people to attack. This time, to prevail, prosecutors will have to take down an entire State government. It will be interesting to see how the State will respond. Whose authority should prevail?

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.

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.

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 the final law is passed; whether the State is in engaged in trafficking or private citizens; will our State government defend us against federal intervention?

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.