Colorado’s medical marijuana law can and should be defended by Attorney General Suthers

By Seth Richardson

In a guest opinion in Sunday’s Gazette, Attorney General John Suthers tries to justify his refusal to defend Colorado’s medical marijuana laws by patting himself on the back regarding his opposition to Obamacare while simultaneously kowtowing to a Supreme Court ruling about marijuana that has a different set of facts than those presented by Colorado’s medical marijuana state constitutional amendment.

Suthers refers to the Supreme Court case Gonzales v. Raich, in which the Supreme Court held that marijuana illegally grown within a single state (California) and used solely within that state by a private person pursuant to a legislative statute authorizing the use of marijuana for medical purposes was still “interstate commerce” which allows the Congress to prohibit marijuana possession and use even when it takes place completely within a single state.

But one of the primary justifications for the Court’s ruling is that cultivation of marijuana within a state is one of a number of “purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce.” The argument holds that even home-grown, home-consumed medical marijuana may have a “substantial effect on interstate commerce.” Justice Stevens wrote, “Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”

The basis of this reasoning is a case called Wickard v. Filburn, a Depression-era case in which the Supreme Court upheld one of FDR’s Progressive laws that set quotas for how much wheat a farmer could grow on his own land. In that 1942 case, the Court said, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Using this justification, the Court upheld charges against a farmer who grew wheat on his own land for his own consumption, saying that because he would not therefore have to buy wheat for his own consumption at the market price set by the FDR administration, which was set artificially high in a vain attempt to prop up the markets, his growing of his own wheat would, in aggregate (if everybody else did the same thing) substantially affect the price of wheat.

In Gonzales v. Raich the reasoning was the same, that by growing marijuana herself, Raich was “affecting” the illegal market for marijuana, both as a consumer and potentially as an exporter, and that like Wickard, if enough people grew marijuana at home for personal use, it would “substantially affect” the price of illegal marijuana traveling interstate to supply demand, which thereby authorizes Congress to regulate the entire “class of activities” (marijuana cultivation and use) under its Commerce Clause authority.

But Colorado’s medical marijuana industry is different is several respects. First of all, our law is based not in a legislative act, but in an amendment to our state Constitution, which is a much stronger expression of the public will than a legislative act that sets up a head-to-head conflict between Colorado’s Tenth Amendment rights and federal exercises of Commerce Clause authority. Second, the close state control and oversight of the industry ensures that the industry does not substantially affect interstate commerce, legal or illegal, in medical marijuana.

Suthers says “Because of the rule of law, until a change of policy by Congress, medical marijuana remains in violation of federal law. The state attorney general cannot change that.”

What Suthers is evading is his responsibility to stand up and defend the rights of Coloradoans to make constitutional amendments and legalize matters that are purely in-state issues by challenging the incremental expansion of Commerce Clause authority by the Supreme Court in cases like Wickard and Gonzales as being improper decisions leading to improper exercises of federal authority over strictly local matters.

Even if he inevitably loses the case, merely by vigorously defending our state’s rights he is making a potent political statement that may affect change in Congress. He owes this duty of fidelity to the Colorado Constitution to the people of Colorado, irrespective of what the Supreme Court has said in the past. Supreme Court rulings are always subject to challenge, as are the laws of Congress, and this is how a good attorney general goes about it.

Wickard v. Filburn, which is the modern era root of nearly all Commerce Clause overreach by the federal government was decided by a Supreme Court that was very liberal and very sympathetic to FDR’s Progressive pretensions, and although it stands as precedent, precedents can be overturned  by the Court, or by the Congress, but not unless someone stands up and challenges the inequity and overreach of the previous decision and forces change.

Colorado’s medical marijuana laws are substantially different from either Wickard’s wheat field or Raich’s home-grown marijuana. Because there is a substantially different set of facts involved, it is incumbent on the Attorney General to defend the just and reasonable decision of Colorado voters to amend their foundational document to permit a carefully-regulated and entirely domestic medical marijuana industry, even in the face of a seemly, but not irrevocably hostile Supreme Court ruling decided under a different set of facts.

Perhaps if he directly challenges the federal government’s authority to interfere in our medical marijuana laws, and other states join Colorado in demanding that the federal government respect the Tenth Amendment and the rights of the people to control domestic in-state matters, Congress will finally see the turning of the tide of public opinion and will relent by rescheduling marijuana so that it can be lawfully used under federal law for legitimate medical purposes.

But if Suthers does nothing, he is implicitly approving of the erroneous and harmful expansion of federal Commerce Clause power, which puts paid to his self-congratulatory maundering about his attack on the “unbridled power” of the federal government regarding Obamacare in his editorial.

Call Attorney General Suthers and demand that he defend the laws of Colorado and our rights under the Tenth Amendment to decide how to regulate the use of medical marijuana.

Secularist’s at the Freedom From Religion Foundation are reaping what they’ve sown

By Seth Richardson

It seems the FFRF has it’s panties in a twist because a bunch of Rhode Island florists refused to take their money to deliver flowers to Jessica Ahlquist, a teenage Secularist and First Amendment activist who succeeded in having a religious banner removed from her Rhode Island high school.

The Blaze reports on the controversy:

…According to FFRF Co-President Annie Laurie Gaylor, Twins Florist, one of the businesses that refused to deliver, violated the Civil Rights Act when the business discriminated based on Ahlquist’s atheism. Gaylor released the receipt order from the florist, which reads, “I will not deliver to this person.”…

Gaylor goes on to claim:

“We have basic civil rights standards in our society. A business can‘t shun you because you’re an atheist,” the atheist leader said. “You do not have the right to refuse to do business with someone based on categories and that includes religion. It‘s as if they said ’I will not deliver to a black person.’”

Problem is, Ahlquist is not black, the florists didn’t refuse to deliver to her because she’s black or because she’s an atheist, they refused to trade with the FFRF because it’s an activist Secularist organization and they refused to deliver to Ahlquist because she is a Secularist political activist. It’s not illegal for a business to discriminate based on political categorization. It’s perfectly legal for a business to refuse to serve Democrats, or Progressives or Communists…or Secularists.

The Civil Rights Act says that everyone shall be entitled to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin.” Nothing is said about political discrimination, however. Moreover, according to the definitions found in 42 U.S.C. §2000, a florist’s shop is not a “place of public accommodation” covered by federal law to begin with.

Ahlquist’s objection to the banner in her high school was based on constitutional First Amendment Establishment Clause legal principles, and therefor her claim was a secular political argument (and a fully-justifiable one) about the appropriateness of the clearly religious banner being displayed in a public school. Since secularism is not a religion and Ahlquist’s political Secularist activism does not fall under the protection of the Civil Rights Act, business owners are free to refuse to serve her, or the FFRF, which is equally a Secularist political activist organization, if they wish.

So, Ms. Gaylor is simply wrong and people have every right to discriminate against and shun Secularists, just like they can discriminate against and shun Progressives, Communists or Marxists based on any category they choose other than those specifically listed in the Civil Rights Act.

Such “category” discrimination is called “freedom of (dis)association” and it’s guaranteed by the First Amendment as a right to each and every individual, including Rhode Island florists.

© 2012 Altnews

Federal intrusions into Colorado’s medical marijuana industry must be stopped, and A.G.Suthers has a duty to do so.

By Seth Richardson

Colorado has the most carefully-regulated medical marijuana industry in the nation. Every plant is tracked from seed to consumption to ensure that it is used only in Colorado by authorized medical patients and that every seed, stem, leaf and bud stays in Colorado. Even the destruction of unused parts of the plant is closely regulated and documented. If ever there was commerce that cannot be defined as “commerce among the several states” it’s Colorado’s internal commerce in medical marijuana.

The federal government derives its authority to regulate marijuana based on the U.S. Constitution’s commerce clause authority which permits Congress to regulate commerce “among the several states.” This constitutional authority has been grossly distorted over the decades by politicians and judges and like a rubber sheet has been stretched and expanded so that it now covers quite literally almost all commerce that takes place anywhere in the United States or abroad under the Supreme Court approved rubric that commerce within a state may “affect” commerce outside that state.

This expansion of federal power and control began long ago, in 1824 with the declaration of Chief Justice John Marshall in Gibbons v. Ogden, where he wrote, “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” But in that same ruling Marshall admitted that Congress’ power to regulate commerce is not plenary. He wrote, “The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.” (emphasis added)

For more than a hundred years after Marshall’s ruling, the federal government largely confined itself to actually regulating commerce that passed between states. But during the Roosevelt New Deal administration, the Court radically expanded the scope of the commerce clause in Wickard v. Filburn, where a farmer growing grain on his own property for consumption by his own livestock, which were intended to be consumed by his family was charged with a crime under FDR’s Agricultural Adjustment Act of 1938, in which the federal government assumed the power to regulate how much wheat could be produced by farmers nationwide in order to limit wheat supplies and drive up wheat prices through artificial shortages during the Great Depression.

With this ruling, almost no activity was beyond the reach of Congress under the commerce clause, and it wasn’t until 1995 that the Court began restricting Congress’ power to interfere in strictly in-state local matters. In United States v. Lopez (1995), Chief Justice William H. Rehnquist, writing for the majority, struck down a federal law that made it a crime to possess a gun within 1000 feet of a school, reasoning that the mere possession of a firearm does not qualify as “commerce” and that the supposed justification that schoolchildren eventually grow up to be workers who may travel interstate was too tenuous and insubstantial a connection to “commerce among the several states” to be upheld, and that therefore the federal regulation of the simple possession of firearms within the boundaries of a state was beyond the authority of the commerce clause and the Congress to regulate.

This particular ruling is important when it comes to analyzing the Obama Administration’s interference in Colorado’s medical marijuana industry. U.S. Attorney John Walsh is quoted by the Associated Press as writing in a letter to 23 marijuana dispensaries located near schools, “When the voters of Colorado passed the limited medical marijuana amendment in 2000, they could not have anticipated that their vote would be used to justify large marijuana stores located within blocks of our schools.”

That, Mr. Walsh, is not only an arrogant presumption and dismissal of the will of the People of Colorado, but it’s also absolutely none of your business. They are not “your” schools, they are Colorado schools, and where Colorado chooses to permit strictly in-state commercial activities is not within your authority to regulate.

In fact, the issue of marijuana dispensaries near schools has been the subject of considerable debate by both the public and by every level of government responsible for permitting dispensaries. The people of Colorado, through their elected representatives have expressed themselves clearly in the laws of Colorado, which are not your concern.

It is not the business of the federal government to interfere in those sovereign state decisions about siting and permitting of dispensaries. This is strictly a matter of state and local concern and we, the People of Colorado, don’t need or want your advice or your arrogant interference in our purely in-state, absolutely non-interstate medical marijuana industry. So butt out.

Of course, being an arrogant federal bureaucrat, Walsh won’t butt out, so this issue is no longer about how Colorado approves dispensary permits, this is about a purely local state constitutional amendment duly voted on and approved by Coloradoans versus an overreaching, arrogant federal agency that has decided to flex its power and in doing so is treading squarely upon our rights as Coloradoans to determine our own laws and future regarding strictly in-state commercial activities.

This is about state’s rights and it’s time for a straight-up fight with the federal government about the rights of Coloradoans under the 10th Amendment. If Colorado’s heavily regulated completely in-state medical marijuana industry is not immune from the interstate commerce clause power of Congress and overreaching federal bureaucrats, absolutely no human activity is, which would make a mockery of the words “among the several states” even more so than it has been, and would erase all constitutional constraints on Congress, and would effectively repeal the 10th Amendment and destroy the very idea of the Republic and the rights of states to determine, within their own boundaries, how the people shall consent to be governed.

Because medical marijuana must be both grown and consumed exclusively within the state, and it cannot be lawfully imported or exported from the state, the federal government has no authority whatsoever to regulate it because it’s not interstate commerce, nor does it affect interstate commerce in marijuana because transporting marijuana interstate is a federal crime.

Now is the time and here is the place for Colorado and indeed all of the states to stand up to defend the 10th Amendment and directly challenge the authority of the federal government to interfere in sovereign state affairs.

There has not been a better, stronger case for reining-in an out-of-control federal government in decades, and it is Colorado Attorney General Suther’s duty and obligation to take this fight to the Supreme Court and win it.

Anything less is dereliction of his duty to preserve, protect and defend the Constitution of the State of Colorado and our rights as citizens.

Call A.G. Suthers and demand that he put everything he has into this fight, or resign his office if he cannot find it in him to uphold his duty to our Constitution.

© 2012 Altnews

Most City Council Members know that lawmaking is not an adversarial process

By Seth Richardson

On Monday, Council members Scott Hente, Jan Martin, Lisa Czelatdko, Tim Leigh, and Brandy Williams stood up for the Colorado Open Meetings law and open government by opposing a move by Council members Merv Bennett, Angela Dougan, and Val Snider to take the Council into closed executive session to discuss a proposal for banning free speech downtown placed on the agenda by City Attorney Chris Melcher.

Herpin blasted the notion that free speech restrictions ought to be discussed outside the view of the public. Good for him and good for the Council members who voted with him.

City Attorney Melcher then withdrew his proposal, “lawful limitations on activities in public places” from the agenda, claiming that by revealing to the public his report on the current state of the law and his advice on “the strengths and weaknesses of proposed ordinances” it would be “communicating to potential opponents of an ordinance what our legal strategy is and what the city’s legal interests would be.”

Well, yes, that’s true, but so what? Public lawmaking must be done in open session precisely so that the public can know what is being proposed and what the legal and moral justifications are for the law.

Melcher’s problem is that he’s looking at this ordinance like it’s an adversarial courtroom procedure where battling attorneys attempt to present their case to a jury in the best light, by deciding what to reveal and what not to reveal, in hopes of persuading the jury to rule in their favor.

The problem is, public lawmaking is not an adversarial process and the City Council is not a courtroom with complex rules of evidence and attorney-client privilege. Public lawmaking is an authority granted to the elected City Council by the people themselves, and therefore the people are entitled to know exactly what the legal and moral justifications for any law under review are. Moreover, they are entitled to have input on those justifications in open public meetings and they are equally entitled to know what the legal interests and strategies of the city are.

It’s their city. It doesn’t belong to the City Council. They are just representatives of the people. So when Melcher complains that revealing his report would compromise the city’s legal interests and strategies what he’s really saying is that the people who elected the Council and the people who pay his salary are not the source of all legal power and authority and that their interests are somehow different from those of the Council.

This is nonsense, and worse it shows a misunderstanding of Melcher’s duties to the people he actually works for.

If his proposal has legal faults or weaknesses, then it’s imperative that the public be made fully aware of these faults, so that the minds of the many people who have a direct interest in whether or not their right to speak freely in Colorado Springs will be infringed may be brought to bear on the issue so that they can give the Council their advice and opinion on a law that stands to substantially impact their fundamental civil rights.

Those members of the Council who resisted the attempt to consider this law in secrecy should be lauded, and those who advocated keeping the public in the dark, including Mr. Melcher, should be ashamed of themselves. And voters should keep in mind who defended essential liberties and who did not come election time.

© 2012 Altnews

Mayor Bach’s “Free Speech Zones” are an unconstitutional solution in search of a non-existent problem.

By Seth Richardson

Mayor Bach is wasting taxpayer dollars and staff attorney time trying to figure out how to pander to the complaints of business owners in the downtown area who are fed up with the shenanigans of the Occupy Wall Street protesters. Business owners are complaining that protesters are ruining their businesses with their continued presence, and they want the Mayor do to something about it.

Fortunately, Mayor Bach already has adequate authority under existing public order ordinances and laws to keep the Occupy Wall Street protests, or any other protest or rally under appropriate control to protect the health, safety and welfare of the public. What he does not have is any power or authority to suppress the political speech of the Occupy protesters in order to protect the economic interests of the merchants of downtown Colorado Springs.

Mayor Bach is having his staff attorneys work on some sort of “free speech zone” regulation that would attempt to relegate political speech to out-of-the-way locations so as to prevent them from disrupting commerce. That he’s even entertained the notion demonstrates a serious lack of constitutional knowledge and understanding on the Mayor’s part. The simple fact that any elected official ought to know is that the entire surface area of the United States is by law a “free speech zone,” and one of the only ones left on the planet. We must all vigorously defend against every attempt by government to change the presumption that each of us is free to speak and express ourselves in a peaceable manner wherever we are, particularly on public property, because failing to do so will lead to a complete reversal of a fundamental tenet of our Constitution.

The Constitution does not give Mayor Bach or anyone else the power or authority to flatly prohibit speech on any public property anywhere under any circumstances. If a person has the right to lawfully occupy a public space, that person has the right to lawfully engage in free speech and expression and government cannot simply silence him. To grant Mayor Bach the power to silence citizens on public rights-of-way by establishing “free speech zones” and restricting speech to such areas as the government deems appropriate is neither reasonable nor constitutional, it’s pure idiocy unworthy of our Mayor, and we should all stand with the Occupy protesters to defend the right to freedom of speech so long as such speech is exercised lawfully and peaceably.

First Amendment jurisprudence holds that the government cannot lawfully discriminate against any particular type of otherwise lawful speech based on its content. Content-based review, discrimination and prior restraint on free speech is flatly unconstitutional, and the Supreme Court has said so in no uncertain terms. Therefore, if the Mayor restricts free political speech to some specified area, this means that no one will be free to speak anywhere else, regardless of the content of their speech. This is too ridiculous to even contemplate as it would prevent people from saying “hello” in passing outside the authorized “free speech zone.”

It may seem silly to even suggest that this would be the result of Mayor Bach’s notion, but because prior-restraint content-based regulation of speech is unlawful, that’s exactly the construction that would necessarily be given to such a regulation. This would of course mean the ordinance’s immediate rejection by the courts, making the whole exercise one of futility and embarrassment to the city and to Mayor Bach.

But that does not leave Mayor Bach helpless to control the activities of protesters downtown.

What the Occupy protesters refuse to acknowledge is that their right to engage in free speech and expression is not limitless, and the government has the power and authority to reasonably regulate the time, place and manner in which free speech is exercised. Just as the Occupy protesters cannot chant and wave banners in a courtroom or engage in disruptive behavior at a City Council meeting, their activities on public sidewalks and in public parks can be reasonably regulated as required to maintain public peace, order and dignity.

This means, for example, that erecting camps on public land can be prohibited, as can obstruction of sidewalks or access to private property, such as storefronts. Disruptive behavior such as spitting, harassment, disorderly conduct, assault or other breaches of the peace against passers-by are already unlawful and can be enforced by the police. Parks can be closed at night if health, safety and welfare issues make it reasonable to do so. And the regulations needed to control such activities already exist and have been well-tested and approved by the courts. All the Mayor needs to do is direct the Chief of Police to neutrally, objectively and firmly enforce the existing ordinances.

But Mayor Bach cannot constitutionally prohibit individuals from engaging in free political (or other) speech, or relegate the exercise of free speech to specific places merely to protect the image of downtown or the profits of business owners.

© 2012 Altnews

Soldiers who violate their oath, endanger their fellow soldiers and give aid or comfort to the enemy must be harshly punished as an example to others.

By Seth Richardson

As Private Bradley Manning’s Article 32 hearing gets underway, Manning’s defense attorneys are throwing in every thing but the kitchen sink at the bench in an attempt to persuade the court that a) the information Manning stole and release wasn’t really all that classified; b) that the government really shouldn’t be classifying all those documents; c) Manning was upset because he’s either gay or has a sexual identity disorder or both and therefore can’t be held responsible for his actions; and d) that the Army is responsible for Manning’s actions because it is lax in its security measures for classified information.

However, the one thing they aren’t arguing is that Manning didn’t do the deed. That would be a hard claim to support, given the fact that Manning has admitted on several occasions that he did it. With that in mind, let’s review a few other salient points:

“I, Bradley E. Manning, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

That is the oath that the Army Private First Class who is charged with leaking classified documents swore when he became a soldier.

One of those orders from officers appointed over him, and one of the regulations he swore to abide by was to keep classified information secret. The oath he took does not give him the right to make an independent judgment about the intelligence policies of the United States or the right to violate those policies because he feels slighted as a gay soldier ro because he disagrees with how the United States prosecutes a war or engages in diplomacy.

No, Private Manning’s duty was clear, and it’s just as clear that he knowingly and deliberately violated orders, regulations, laws and his oath. In doing so he substantially aided America’s enemies, placed his fellow soldiers at additional risk, and damaged our diplomatic efforts to an extent that is still not fully known.

That’s treason.

Article 3, Section 3 of the Constitution states that, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The penalty for treason is death.

The espionage law, 18 U.S.C. 784 states that, “(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, … transmits… to any foreign government, or to any faction or party … either directly or indirectly, any document,  or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.

If Manning is convicted of either espionage or treason, he should be executed, as should any other person involved in the leaking of classified documents to Wikileaks, including the founder of Wikileaks and any other co-conspirators involved with Wikileaks, who should be tracked down by the FBI, taken into custody and transported to the United States for trial, regardless of where they may be found.

The First Amendment protects freedom of speech and the press, but it does not protect traitors or spies.

© 2012 Altnews