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View Diary: 19 Is The New 420 (285 comments)

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  •  I'm not a Lawyer so I come unarmed (1+ / 0-)
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    mahakali overdrive

    but I do believe our Forefathers would see the prohibition of Marijuana to be Unconstitutional. We know that at least a few of the forefathers even grew and used marijuana. During their time of life they could not even imagine someone prohibiting a medicine they used every day on the farmers across this country. BRANDEIS cited in the above case also had this to say or quote.

    Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions [p473] and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall "designed to approach immortality as nearly as human institutions can approach it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.

    "Maybe the American eagle should be replaced with the ostrich."

    by SmileySam on Wed Jun 30, 2010 at 09:07:25 AM PDT

    [ Parent ]

    •  The problem with that argument (2+ / 0-)
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      SmileySam, mahakali overdrive

      The forefathers had no problem with slavery, or with no votes for women (or males who were not land-owners, for that matter). There are lots of things we don't want to go back to that were common and accepted custom then.

      "I want to apologize for that misconstrued misconstruction." Rep Joe Barton

      by Catte Nappe on Wed Jun 30, 2010 at 09:20:47 AM PDT

      [ Parent ]

    •  Hi Smiley, I'm Gonna Educate You if You Want It (0+ / 0-)

      Once again, I want to preface this by making sure it is understood that I'm on your side and that's why I want you to get your language straight so that we can be more credible to others. Unconstitutional doesn't mean bad or wrong or bogus or annoying or unjust or absurd or unreasonable. It means contrary to the provisions of the United States Constitution.

      The US Constitution is a relatively short document that does three specific things:

      1. It divides the government into three branches - judicial, legislative, and executive - and it says what functions each of those branches has.
      1. It delineates what the functions of the federal government is versus the function of the state governments.
      1. It provides for amendments, of which we've had 27 so far.

      So, unless something involves one branch of the government doing something that another branch should be doing or the federal government doing something that a state government should be doing, it is not unconstitutional unless it goes against something that is specifically enumerated in one of the amendments.

      Federal drug laws have been challenged constitutionally as imposing on state's rights and those challenges have been soundly rejected by the Supreme Court under the Commerce Clause which gives the feds the right to regulate anything that even remotely effects interstate commerce. Since the Constitution gives the Supreme Court the power to interpret the Constitution, by definition, what they say is constitutional is constitutional.

      Therefore, unless you can point to a specific amendment that marijuana prohibition violates, which I'm sure you can't because none of them deal with marijuana, you can't rightly say that marijuana prohibition isn't constitutional.

      This is not to say that I don't agree with you that marijuana prohibition strikes at the very liberties that this country was founded on, which is what I think you mean when you say unconstitutional. I just want people to stop using the word "unconstitutional" when what they really mean is completely unjust and contrary to the principles that make America a country of liberty and justice for all.

      Anyway, onward to passage of prop 19 and then forward to an end to the drug war.

    •  I forgot to address your points and quote. (0+ / 0-)

      Hi Smiley, I also want to address your point that many of the founders of this country wear hempsters for sure and would be pissed off that marijuana is now prohibited. This is true, but it has nothing to do with the Constitution. If they wanted to put protections for hemp in the Constitution they could have, but they didn't and it would have been weird if they did, because that's not the type of thing that the Constitution deals with.

      The quote from Justice Brandeis is from his dissent in a case dealing with whether wiretapping without a warrant is a violation of the 4th Amendment. First of all, a dissent is not the law, only the majority opinion is. However, Brandeis' views eventually got adopted by the majority of the court and it is now well established that the 4th Amendment covers wiretapping.

      What Brandeis is saying and I agree with wholeheartedly is that the Constitution doesn't foresee the future and so when the 4th amendment passed and protected people's papers and houses from warrantless searches, the spirit of that should apply to telephonic information (and for that matter emails today) which hadn't even been invented at the time and would probably have been included if it had been invented.

      This has nothing to do with the prohibition of marijuana. It doesn't apply at all because there is nothing in the Constitution that even remotely protects against the prohibition on marijuana. The closest argument you could make would be based on the 21st amendment which repealed prohibition of alcohol. But this is not nearly close enough and I'm positive that Justice Brandeis would not have agreed that the repeal of prohibition of alcohol should be interpreted as saying that you can't prohibit other substances such as marijuana. So the Brandeis quote just doesn't apply to your argument that marijuana prohibition is unconstitutional. It just isn't. It's bogus, unjust, and un-American, but it's perfectly constitutional.

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