“In America, we are fortunate to have a “social compact” that protects the people from “government intelligence.” Rather than relying on “government intelligence” for governance…”
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An Unjust Law Is No Law: Pot, Usurpation and Reparations
By Kary Love
In America, we are fortunate to have a “social compact” that protects the people from “government intelligence.” Rather than relying on “government intelligence” for governance, America relies on the Constitution, in theory. In theory, America is a nation of law and the federal government only has limited, specifically stated powers and no others. This means the federal government has to have a stated power or it cannot make a law regarding a particular matter.
For the Congress to make legitimate laws (all others are by definition “unjust” under the American theory of government) it must have been given that power in the Constitution, specifically Article I §8 which specifies the law-making powers given Congress. Government intelligence is not a basis for Congressional power, precisely because “government and intelligence” is known to be oxymoronic, thank the Founding Fathers! Government by the best and the brightest without limitation would be an invitation for the power hungry to satiate their lust on the backs of the people. Of course, that is precisely what has happened as the Congress has usurped powers it was never given. This is where pot comes in. In a way, it is a perfect example of how the American federal governments has, excuse the pun, gone to pot.
Congress has no express power over pot in Art. I §8, nor over drugs generally, nor governing what people can take into their own bodies, nor even the power to protect our health. The federal government is not your nurse or doctor or caretaker. The recent trend towards legalization of pot on the state and local level results from the tremendous abuse the war on drugs conducted by the federal government against the people has caused in communities across the nation. More people in jail, families broken up, futures destroyed, violence, excessive police actions, all because the war on drugs was also a war on the Bill of Rights, eviscerating those rights of the people with foreseeable destruction to communities.
These negative results, combined with science showing pot actually is much better than alcohol and has medical uses that help people has caused a re-evaluation of the federal war on pot, with such drug war traitors as John Boehner and Chuck Schumer arising from the ashes their war created to try to cash in as sanity sweeps the people.
But it is essential a lesson be learned here, one that benefits every American, a truly nonpartisan lesson: beware when Congress disregards the supreme law and usurps powers not granted to it. Even if it is for something you agree with! Especially then! Congress is a creature of the Constitution. When Congress decides to defy the Constitution, and usurp powers the people never gave it, not only are the rights of the people imperiled, Congress becomes lawless, in effect a crew of pirates, not legitimate lawmakers representing the people.
Once freed from the limits of the Constitution, a lawless Congress gives rise to lawless enforcement, excessive enforcement, abuse of rights and collateral damage to all kinds. Why not? If not bound down by the literal words of the Constitution, why should Congress limit its grasping reach for more power? If the people let it, Congress would usurp all power to itself, and every usurpation is detrimental to the rights of the people. Simply put, the Congress is made of people who want power, the Constitution is a limit on their power, thus Congress necessarily detests the Constitution. If the Congress can persuade the people to let it usurp powers, Congress can escape both the legal limits on its power, the Constitution, and the political limits—the people become co-opted and co-conspirators in the drive to destroy the rights the Constitution reserved to the people. To rephrase H. L. Mencken: The power hungry do not want us to think as they do, they try to make us do as they think.
The fact Congress never had power over pot but exercised a war against the American people for decades under false pretenses, ought to concern every American. The claim is made that the “interstate commerce” power granted in Art I §8 is a basis for their lawmaking in this regard, is a flawed argument at best: it might be cause to mitigate punishment but it is no defense to the claim of usurpation. Even the Supreme Court, with its dubious history of upholding the peoples’ rights having okayed slavery, segregated schools, and other failures of judgment, faced a brutally honest dissent in the case of a grandmother who grew pot in her own yard to self-treatment of her reaction to chemotherapy, whom the prosecutors stipulated never sold nor tried to sell or even give any way: the dissent revealed the naked power grab—if such facts showed an implication of interstate commerce, then any activity a US Citizen engaged in down in a back room of their basement, which no one else never ever knew about could be conduct the Congress could legislate as a crime. Such a Congress was never envisioned by the language of the Constitution and is antithetical to the idea of a limited government championed by America as a model for the world. Such a Congress, claiming power limited only by its own brand of “government intelligence” is a Congress befitting the Union of Soviet Socialist Republics, the USSR, not the USA. Such a Congress is lawless and must be repudiated by every American as repulsive in theory and abusive in practice.
Hence, the recent retreat by former congresspersons and current congresspersons is not “leadership.” It is “followership.” The war on drugs has been a disaster. The people, long suffering from its inanity, have awoken to the disservice their “servants” in government have done to them. The science has reached the light of day showing no rational foundation for war against pot given its medical and health benefits. The law has been the last refuge of Congress and the drug warriors. “Everything we did was legal,” they bray. (They do not mention they made a lot of “ill-gotten gain” off it, too.) This claim is forcing the people to analyze it.
Sadly, for the drug warriors both in and outside of Congress, the people can still read and think. Reading the Constitution reveals no express grant of authority to make laws in this area at all. Precedent, think Prohibition of alcohol, supports this claim—to legislate regarding alcohol required a Constitutional Amendment to give Congress the power since it was not included in Art I §8. Similarly, a Constitutional Amendment should have been used rather than naked usurpation assuming the people would have given approval to such a power grab by Congress which is doubtful as the people are rightly suspicious of giving more power to invade their rights without serious consideration. The interstate commerce clause is a weak foundation on which to base the claim and is almost certainly wrong as a matter of history but I do not want to belabor the point (others have produced scholarly law review articles showing the meaning of “commerce” as used in the Constitution was much more limited than modern “interpretations” allow.) In any event, the results have been a disaster, the people have suffered long enough, their communities disrupted to the point the people are going around Congress at the state and local level and leading to restore a balance disrupted by the apparently illegal usurpation implemented as a war against the people. I suspect that it is this type of usurpation of power, exercised to inflict suffering and loss of rights on the people, which truly shows the “swamp” that is Congress and its enablers.
Assuming the usurpation was illegal, which I believe time will evolve to support, then Congress, in addition to invalidating all federal laws regarding pot, must seek to invalidate all convictions in federal courts based thereon, must provide reparations to the families decimated by the war on them, and if needed, support Presidential pardons for all other “offenders” wrongly labelled criminals.
Irrespective of what Congress does, the people must learn that never again should Congress be able to blithely disregard the law that created it, the Constitution, nor the limits imposed upon it by the people when they adopted it. The people would also be wise to investigate whether any “representative” of theirs in Congress supported the war on drugs/on the Bill of Rights to the detriment of their rights and be certain to send a loud ballot box message: vote out those whose idea of representing you and protecting your rights included support for usurped powers. Let those the people elect understand, this far and no farther may you go. Recall the hard-learned lesson of history that the rights of the people are more endangered by their own government, which is present here and acting today under the power of law than by any foreign threat, which is far away in space and time. Usurpation of power undermines and ultimately destroys the rule of law and with it government of the people, by the people and for the people.
Kary Love is a Michigan attorney who has defended nuclear resisters, including some desperado nuns, in court for decades and will on occasion use blunt force satire or actual legal arguments to make a point.