Here is the argument that can trump the supremacy clause and win in the Supreme Court, if the States or Washington D. C. would challenge it properly. In a word, we never gave the federal government the power to prohibit Marijuana, and it has no such power.
The Federal law against marijuana is unconstitutional, and always has been. The Prohibition of alcohol required the amendment of the constitution. Regarding Marijuana, we just dispensed with this formality of amending the constitution, when congress passed the law in 1937. When no one else’s rights are being violated, the Declaration requires that liberty take precedence. When the states entered into the Union, they gave the federal government certain delegated powers. These are those explicitly enumerated, and it was thought by some that we did not even need a Bill of Rights, because the government was given no power, for example, to regulate religion. So, while the Supremacy clause makes federal law supreme, this is only so on issues where the federal government has been explicitly delegated these powers (or the powers that are implied by those that are explicitly delegated), and we, the states, never gave the federal government the power to prohibit either alcohol or marijuana. They do not have these powers because we never gave them up, they simply took them. Further, congress decided contrary to the recommendation of the American medical association, and were otherwise lied to, which is a violation of due process.
In Leary and Reich v. Ashcroft, the federal government attempted to base the authority to prohibit marijuana on the power to tax, and then the power to regulate interstate commerce. Where no commerce is involved, and there is no purpose to regulate toxic or deadly medicines, the Federal government has no business. Even during prohibition, it was legal to make ones own beer and drink it, because we have a constitution.
Within the states, the argument is more difficult, but if the Bill of Rights applies to the states, the Pursuit of Happiness and Liberty in the Declaration must take precedence, where no other rights are violated. Privacy, as in the Alaskan constitution, also requires that the citizens be left alone. They need not even argue on the basis of medicine and the right to life. We are so lame in our constitutional reasoning that it was thought that a majority must vote to allow these things, and our courts are such slaves to public opinion that they decide things like Reich v. Ashcroft, expanding the commerce clause to include basically everything, including flatulence, that might effect commerce. The Supreme Court has failed us before, siding with common opinion, as in Plessy v. Fergusson, and the Dred Scott case. The imposition of an unconstitutional law has required not only the perversion of the commerce clause, but of the entire constitution, as drug testing became routine on this issue. The reason is that in prosecuting an unconstitutional law, privacy must be violated, since the action need not concern any of our fellow citizens or the violation of rights. A crime in American law is, basically, when we violate rights that the government is to protect, like rights of property. “To secure these rights, governments are instituted”- the purpose of government is to secure rights. Prosecuting things because we think they are ethically wrong was not within the scope of American government. Jefferson says as much in his Letter to Francis Gilmer, and elsewhere.
In Ann Arbor, about 1995, as I walked to the library while the Hash Bash was going on, the police set a woman on me, pretending to like me, which is very cruel to do to a lonely, homely and poor man. This too has become routine. After all, what are we going to do with all those women entering law enforcement? This is obscene.
It is the God’s truth, as they say, that I was on my way to the library, though John Sinclair was speaking then, and I should have gone for that reason. I had no car, and a stepfather was going to Ann Arbor that day. I was working on a dissertation, and needed things in the library- a very odd coincidence. As a result of the trauma, I have not been back to the library in Ann Arbor but once or twice since 1995. What occurred after this woman was set on me, I may tell in a future blog.
If, even subjectively, Marijuana is thought to help reading the Bible, one need not even argue, as the Rastafarians did successfully, that it is sacramental in ones religion. Further, the free exercise of religion does not require that the religion be traditional, though it does probably require in principle that the claim be sincere. Marijuana stirs the knowledge within each of us, and in small amounts may help to awaken the soul to more important things. Certain kinds,( Sitiva over Indica ?), can be developed to select this effect, and decrease the tiredness cured by a nap. Growing organically must be legalized, because chemicals like phosphorus will be used to increase the profit from an allotted amount, just as occurred with tobacco. Now, you see, we have a right to avoid the black market and the medicinal market. Criminalization led the kids straight to the addictive drug dealers, who often sell both, and provided one half (I kid you not) of the profits fueling the illegal drug cartels. That is what happens when we violate the right of free speech, which has assured that those speaking out on this legal obscenity would be hounded, at taxpayer expense.
We need not only legalization, but a Supreme Court decision for a number of reasons. One is that if only the law is changed, those violating it in the past will continue to be treated as criminals. To criminalize those who are not criminal is a political disaster. The people have always intuited these thing about liberty, and the result is the decreased respect for the law. To say one has “broken the law” is no longer so grave, and half the time is a joke. This one issue has done a disproportionate job of destroying constitutional liberty in America.
So, the constitutional argument is not just a technicality. If we are not true to our principles we may destroy political liberty. Without liberty, we may indeed harm the general welfare, which is a purpose stated in the preamble of the Constitution (as distinct from a power delegated to congress).
Marijuana is beneficial for depression, far more than the toxic garbage the pharmaceutical companies give us, though some think too that it causes depression, if it is mildly addictive, as is caffeine. Marijuana has no toxicity, and so is less toxic than caffeine. My friend agrees that Marijuana addiction can cause mild depression. He says yeah, I get bummed when I don’t have a sack!