Author: Arthur G. Svenson
Note: Arthur G. Svenson is the David Boies Professor of Government at
the University of Redlands.
CONSIDER THE CONSTITUTIONALITY OF PROP. 19
In the debate over the wisdom of legalizing marijuana for fun and profit, too little has thus far been said about the constitutionality of Proposition 19 should it become California law; moreover, what would remain of that law in an inevitable challenge before the United States Supreme Court is an elephant in the kitchen about which California voters seem unaware.
Assume Proposition 19 passes and for reasons advanced by proponents of the measure, namely that every third American has used marijuana, and that its popularity is a function of marijuana's relatively harmless effects, making its recreational legalization less problematic than "alcohol or cigarettes, which are both legal for adult consumption."
The legalization of commercial marijuana offers an even more compelling reason to "just say yes" to Proposition 19 given its promise of "potential increased tax and fee revenues in the hundreds of millions of dollars annually and potential correctional savings of several tens of millions of dollars annually."
The mantra of Proposition 19 proponents is "no legalization without taxation," generating, as a consequence, new revenue streams to fund what matters most - "jobs, health care, schools and libraries, roads and more."
Could Proposition 19 be challenged on constitutional grounds, and if so, what would be left standing after the Supreme Court passed judgment on it?
California was the first state not only to criminalize marijuana, but to legalize it for medical purposes. No court of last resort, it must be said, has held that California law lifting criminal sanctions on medical marijuana for seriously ill Californians, their physicians and caregivers, is preempted by the federal law that imposes criminal sanctions on marijuana use for any purpose, and this is so for reasons not readily apparent.
California's Compassionate Use Act that immunizes medical marijuana from its criminal code authorizes no behavior that federal law can preempt. Thus, while marijuana use for any reason remains a federal crime, a decision by a sovereign state not to act to impose a criminal penalty on medical marijuana means that no state-federal conflict exists, rendering federal preemption of medical marijuana impossible.
Precisely the same constitutional logic would apply to a California law that lifts criminal sanctions against recreational use of marijuana. Legally speaking, the distinction between recreational and medical use of marijuana would amount to a distinction without a constitutional difference.
The practical difference, on the other hand, would be enormous since every third Californian could be arrested for felonious federal behavior. Then, again, since President Barack Obama's Justice Department has established a policy not to prosecute "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana" because federal enforcement resources are insufficient to police the large number of offenders, surely the imbalance between federal resources and potential California targets would be hopelessly exaggerated if marijuana for fun violates no part of the state criminal code.
Consider, though, the constitutional conflict between federal law and the legalization of marijuana for commercial gain. Proposition 19 would authorize local governments to raise revenue from a tax imposed on a banned federal substance - another first for the Golden State.
One might wonder why Californians would buy marijuana otherwise so easily cultivated in one's backyard. One might wonder, too, about the projected revenue estimates from buying and selling marijuana since competition among the state's 475+ local governments to attract cannabusinesses would drive tax rates down along with revenue-raising projections.
But one need not wonder about the Supreme Court's constitutional take on a California law that taxes a federally banned substance. If a local government imposes a tax on marijuana and a subsequent penalty for not paying that tax, federal and state law would require conflicting behavior: Not paying the state tax is evidence that state law has been violated, but paying the tax is evidence that federal law has been violated.
Thus, since state and federal law require conflicting behavior, and since federal law governing controlled substances is made in pursuance of the Constitution and is, therefore, the supreme law of the land, the Supreme Court would void the "for profit" element of Proposition 19, leaving undisturbed private consumption of marijuana "for fun."
The elephant in the kitchen of California voters? If there is any truth to the claim that for every dollar raised from alcohol and tobacco taxes, nearly $9 are spent to repair the carnage of abuse, adding yet another intoxicant to the mix could compound already staggering social and financial costs.
But voiding the legalization of marijuana for commercial purposes would leave the state with no new revenues for existing problems - not the promise of Proposition 19, and - worse - no new money for new problems linked to recreational abuse of marijuana - a nightmare consequence of the inevitable application of the constitutional principle of federal preemption.
Note: Arthur G. Svenson is the David Boies Professor of Government at
the University of Redlands.
CONSIDER THE CONSTITUTIONALITY OF PROP. 19
In the debate over the wisdom of legalizing marijuana for fun and profit, too little has thus far been said about the constitutionality of Proposition 19 should it become California law; moreover, what would remain of that law in an inevitable challenge before the United States Supreme Court is an elephant in the kitchen about which California voters seem unaware.
Assume Proposition 19 passes and for reasons advanced by proponents of the measure, namely that every third American has used marijuana, and that its popularity is a function of marijuana's relatively harmless effects, making its recreational legalization less problematic than "alcohol or cigarettes, which are both legal for adult consumption."
The legalization of commercial marijuana offers an even more compelling reason to "just say yes" to Proposition 19 given its promise of "potential increased tax and fee revenues in the hundreds of millions of dollars annually and potential correctional savings of several tens of millions of dollars annually."
The mantra of Proposition 19 proponents is "no legalization without taxation," generating, as a consequence, new revenue streams to fund what matters most - "jobs, health care, schools and libraries, roads and more."
Could Proposition 19 be challenged on constitutional grounds, and if so, what would be left standing after the Supreme Court passed judgment on it?
California was the first state not only to criminalize marijuana, but to legalize it for medical purposes. No court of last resort, it must be said, has held that California law lifting criminal sanctions on medical marijuana for seriously ill Californians, their physicians and caregivers, is preempted by the federal law that imposes criminal sanctions on marijuana use for any purpose, and this is so for reasons not readily apparent.
California's Compassionate Use Act that immunizes medical marijuana from its criminal code authorizes no behavior that federal law can preempt. Thus, while marijuana use for any reason remains a federal crime, a decision by a sovereign state not to act to impose a criminal penalty on medical marijuana means that no state-federal conflict exists, rendering federal preemption of medical marijuana impossible.
Precisely the same constitutional logic would apply to a California law that lifts criminal sanctions against recreational use of marijuana. Legally speaking, the distinction between recreational and medical use of marijuana would amount to a distinction without a constitutional difference.
The practical difference, on the other hand, would be enormous since every third Californian could be arrested for felonious federal behavior. Then, again, since President Barack Obama's Justice Department has established a policy not to prosecute "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana" because federal enforcement resources are insufficient to police the large number of offenders, surely the imbalance between federal resources and potential California targets would be hopelessly exaggerated if marijuana for fun violates no part of the state criminal code.
Consider, though, the constitutional conflict between federal law and the legalization of marijuana for commercial gain. Proposition 19 would authorize local governments to raise revenue from a tax imposed on a banned federal substance - another first for the Golden State.
One might wonder why Californians would buy marijuana otherwise so easily cultivated in one's backyard. One might wonder, too, about the projected revenue estimates from buying and selling marijuana since competition among the state's 475+ local governments to attract cannabusinesses would drive tax rates down along with revenue-raising projections.
But one need not wonder about the Supreme Court's constitutional take on a California law that taxes a federally banned substance. If a local government imposes a tax on marijuana and a subsequent penalty for not paying that tax, federal and state law would require conflicting behavior: Not paying the state tax is evidence that state law has been violated, but paying the tax is evidence that federal law has been violated.
Thus, since state and federal law require conflicting behavior, and since federal law governing controlled substances is made in pursuance of the Constitution and is, therefore, the supreme law of the land, the Supreme Court would void the "for profit" element of Proposition 19, leaving undisturbed private consumption of marijuana "for fun."
The elephant in the kitchen of California voters? If there is any truth to the claim that for every dollar raised from alcohol and tobacco taxes, nearly $9 are spent to repair the carnage of abuse, adding yet another intoxicant to the mix could compound already staggering social and financial costs.
But voiding the legalization of marijuana for commercial purposes would leave the state with no new revenues for existing problems - not the promise of Proposition 19, and - worse - no new money for new problems linked to recreational abuse of marijuana - a nightmare consequence of the inevitable application of the constitutional principle of federal preemption.
Pretty Vacant if you ask me Mr Lydon lol
As an Aussie I want to see it legalized in California because
