Since the City of Portland, Maine defied an act of Congress and moved forward on allowing grown adults to consume what they please, Maine politics has re-entered the debate of marijuana prohibition’s legality. Federal and state statutes clearly state that smoking an herb is illegal, but do these statutes themselves have any real legal force?
America was founded on the principles of freedom. Under the tyranny of the British, the colonists endured excessive taxation and regulation which would eventually lead to revolution. The fact of our heritage, without sugar coating by omitting details like public schools do, is that it all began with violent insurrection. After exhausting all legal avenues to maintain their rights and not pay excessive taxes, the colonists picked up their arms and engaged in open war with the ruling government.
Central to the American Revolution was the principle that unjust laws are without force of law. This principle continued when the new government established its legal framework. The Constitution was very cautious in the power it granted to the federal government, while recognizing a federal government was necessary after the Articles of Confederation failed to maintain working order.
Marijuana is banned under the federal Controlled Substances Act, which was passed by Congress in the 1970s. Given it is a legislative act, it is subject to Article 1 of the Constitution. Within this Article, we should look no further than Section 8, which lists the specifically enumerated powers of Congress. Nowhere within this section is authorization for regulating personal consumption of herbs or other products.
Article 6, Clause 2 goes on to state, “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.” As noted above, what is pursuant of the Constitution is clearly shown to us in Article 1, Section 8.
Furthermore, the Tenth Amendment was passed to further affirm this point legally. The final Amendment of the Bill of Rights 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.”
But what happens when Congress and the federal governments acts anyway, in clear defiance of the law?
In the early days of the Republic, this question was addressed. In a horrific display of political legislating and an awful abuse of power, the federalist controlled government led by President John Adams made it illegal to speak ill of federal officials. Well, most of them anyway. One critical omission in these protections was the Vice President, which happened to be Democratic-Republican Thomas Jefferson, a political opponent of the President.
Essentially, Americans couldn’t speak negative about the President, a Federalist, or any other official who coincidentally happened to be a Federalist. But the Democratic-Republican Vice President? Verbal bombs away!
Jefferson and James Madison would address these issues in their respective State Legislatures with the Kentucky and Virginia Resolutions. Jefferson, also being the author of the Declaration of Independence, would offer strong words that would be passed by the State Legislature. Madison, the author of the Constitution, would join him in doing the same.
These Resolutions boldly declared that the Federal act was unconstitutional under the Tenth Amendment, further stating that the Sedition Acts were thus null and void. The response from the federal government was not welcoming, but that is to be expected when incredible power grabs are resisted by State Legislatures with a conscience and principles.
Who is a better authority on the Constitution? Political scientists, glorified lawyers, or bureaucrats? None of the above were alive at the time of ratification and probably hold case law above the debates surrounding ratification itself. This is not the correct approach to the law and it is not how our government was designed to work.
Portland made the correct decision, whether they banned it or allowed it, because the decision is theirs to make. In this instance, the people opted to allow grown adults to chose for themselves. The Portland Police Department would be wise to show respect for the people who employ them with their tax dollars, and also show respect for the law they are hired to uphold. The constitutionality is very clear, no matter how ignorant lawyers, political scientists, politicians, and talking heads are.