"Un-Constitutional Law" Is An Oxymoron

From The Tenth Amendment Center:

“Unconstitutional Law” is an Oxymoron




by Derek Sheriff



On Friday night the Marijuana Policy Project reported:



“Although there are still about 10,000 votes left to be counted, our lead of more than 4,000 votes makes us 100 percent confident in announcing…



Arizona is now the 15th medical marijuana state!



This fall, more than 1.7 million Arizona voters mailed in ballots and turned out to support Proposition 203, a ballot initiative that would end the arrest and imprisonment of patients for following their doctor’s advice. While it seemed as if the initiative had fallen short on election night, it garnered enough support from late mail-in votes and provisional ballots to produce a victory!”



Medical marijuana is controversial, no doubt, especially among social conservatives, of which I am one. But regardless of whether or not one supports the legalization of medical marijuana in one’s own state, or whatever a person’s opinion of its efficacy as a medicine might be, one thing should be uncontroversial:



The Tenth Amendment prohibits the federal government from interfering with a state’s decision to either allow or prohibit the cultivation, distribution or use of marijuana within its own boundaries (case law involving the Commerce Clause notwithstanding). Under the Constitution, that decision is reserved to the states or the people. The regulation of intrastate commerce, as it pertains to marijuana, is simply outside the scope of federal power. The fact that our overlords in Washington, DC and their minions throughout the union have ignored the Tenth Amendment for decades, is irrelevant.



But medical marijuana isn’t the only issue over which the people of Arizona have invoked their sovereign powers, guaranteed by the Tenth Amendment. They also passed Prop. 106 in order to amended the Arizona State Constitution, which according to Dr. Eric Novack, Chairman of Arizonans for Health Care Freedom, will do two things:



– One, Prop 106 guarantees that all Arizonans have the right NOT to participate in any health care system or plan without facing a penalty, fine, or tax. Put simply, that means no government-mandated insurance.



– Two, Prop 106 will guarantee that all Arizonans have the right to spend their own money to obtain legal health care services. Second opinions; additional medical treatments; life-saving legal drugs [which now includes marijuana for those whose physician prescribes it]: No government bureaucrat should ever be able to tell you that your life and health are not worth it



Kyrsten Sinema, Assistant House Democratic Leader, sees it differently. In fact she asserted earlier this year that Prop. 106 is actually useless. She wrote:



“Prop. 106 is completely useless because the Supremacy Clause of the U.S. Constitution establishes that laws established by Congress are the supreme law of the land. Through Proposition 106, the state may not tell the federal government what to do.”



Yes, you read that correctly. According to Kyrsten Sinema, federal statutes, not the US Constitution, are the supreme law of the land.



Getting the Supremacy Clause Wrong



As predictable as the sun rising tomorrow in the East, are the arguments that the federal supremacists, opposed to not only Prop. 106, but also those opposed to Prop. 203, will make. At their core, they are essentially identical. They mistakenly assert that federal statutes, rather than the Constitution, are the supreme law of the land. Recall what Kyrsten Sinema wrote:



“..the state may not tell the federal government what to do.”



Prepare yourself for the heavy dose of propaganda you’re about to be subjected to. “States can’t just pick and choose what federal laws they will obey!” and, “federal law trumps state law”, are the sound bites that will be presented to us in a “matter of fact” tone, over and over again. Someone once said that, “A lie told often enough becomes the truth”. I won’t name names, but the name of the person who said it rhymes with Lenin. And just like Kyrsten Sinema’s argument against Prop. 106, the “federal marijuana laws haven’t been repealed” arguments that will be made against Prop. 203, are based on the same flawed understanding, or misrepresentation of, the Constitution’s Supremacy Clause.



The Supremacy Clause established the following rule:



“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”



So what part of the Supremacy Clause don’t they understand? Where do Kyrsten Sinema and other federal supremacists get it wrong? For starters, they seem to ignore or gloss over the fact that the Constitution is mentioned in the clause first. Robert G. Natelson, a nationally recognized expert on the framing and adoption of the Constitution, explains in chapter three of his book, The Original Constitution: What it Actually Said and Meant:



“The Supremacy Clause thereby described a hierarchy by which state (and federal) judges would prioritize federal and state enactments..The most obvious prescription of the Supremacy Clause was that the Constitution and duly-enacted federal laws and treaties were superior to state constitutions and state laws..The US Constitution was mentioned first—before ‘Laws . . . made in Pursuance thereof’—to indicate that the Constitution was superior to statutes..The Supremacy Clause referred to laws ‘in Pursuance’ of the Constitution but to treaties as ‘made, under the Authority of the United States.’..Thus, state and federal courts were to apply sources of law in the following hierarchy:



Highest: The U.S. Constitution



Next highest: U.S. laws and treaties, duly made within the scope of federal power



Next: State constitutions



Lowest: State laws.



Federal actions taken outside the scope of federal power were not, of course, to be law at all.”



So according to Robert Natelson, state and federal courts were to apply sources of law according to the hierarchy listed above. But what happens when federal courts, even the highest federal court in the land fails to do so? Do the states and the People have any further recourse? Yes we do, and the most appropriate one is called state nullification.



“Unconstitutional Law” is an Oxymoron



Federal actions taken outside the scope of federal power are not laws, they are acts of usurpation. In other words, an unconstitutional federal “law” is no law at all, and the states and their people are not bound to obey them. Whether it’s Prop. 106 (The Arizona Health Insurance Reform Amendment), or Prop. 203 (The Arizona Medical Marijuana Initiative), Arizona is acting well within the scope of its reserved powers when it enacts such laws.



Arizona is not somehow being insubordinate, rather it is our so called federal government that is refusing to subordinate its actions to the Constitution, which is the supreme law of the land. By interposing itself between the people of Arizona and a federal government gone rouge, the 48th state is simply performing what most states (both northern and southern), properly understood to be their duty for almost the first half of American history. The examples, which have involved a multiplicity of issues, ranging from the protection of free speech in the 1790′s, to preventing the unconstitutional kidnapping of blacks by slave hunters in the 1850′s, they are too numerous to cover here in detail. But I’ll give you this important example.



When representatives from Rhode Island, New Hampshire, Vermont and Massachusetts assembled in 1814 at what is known as the Hartford Convention, in response to the federal government’s unconstitutional conscription plan and other grievances they had, they did not ask the federal government for permission to “opt out” of their conscription plan, neither did they attempt to sue the federal government in federal court, as far as I know. Rather, they drafted a report and resolutions on their own, without asking permission. They understood that the federal government was their agent, not their master. Let me share with you an excerpt from one of those resolutions adopted by the convention. It reads:



“In case of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of a State and the liberties of the people, it is not only the right, but the duty of such State to interpose its authority for protection in the manner best calculated to secure that end.”





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We don’t necessarily need a convention, like the one convened in Hartford back in 1814, to halt federal acts of usurpation. Fourteen states have already asserted their sovereignty unilaterally, by legalizing medical marijuana in spite of the Supreme Court’s ruling that they may not do so. So far, no one has been run over by a tank. In fact, the federal government has done almost nothing to oppose them. Now it looks like Arizona will be number fifteen.



So thanks for your opinion, Supreme Court…but we’ll be “the decider” when it comes to what kind of health care system we’ll have in Arizona, or if a certain plant, grown and kept within our state, is to be permitted for medicinal use. And whatever we do decide, know that more of us everyday are waking up to the fact that it is the duty of those in our state government to protect the sovereignty of Arizona and to support and defend the Constitution of the United States.



EDITOR’S NOTE: As of 11-14-10, Arizona’s elections office has made it official that Proposition 203 has passed.



CLICK HERE – for the Tenth Amendment Center’s legislative tracking page for state marijuana laws



Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast “Principles of ‘98″ can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here