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Cannabis and the Constitution: The Right to Plant a Seed

Daily Dose 2011-01-21 0 comments


By Brinna Nanda | Excerpt from her blog “Brinna’s Broadside”


“Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance.” –Thomas Jefferson: Legal Argument, 1770. FE 1:376

If there was one simple act which lifted humankind out of the gatherer/hunter modality and placed it squarely upon the first rung of the escalator of civilization, it was, simply put, the planting of a seed.

Back then, in the year Dot, when Ms. Oogah made a wish that sorghum would grow as abundantly near the new campsite as it did at the old one, a universe of possibilities opened. When she intutited that instead of eating all of the funny round things that fell off the stalk, she could stick one, two or a hundred in the ground, water them and then await the manifestation of her wish – the modern world was born.

To engage in agriculture, or animal husbandry is to understand the consequences of time, the support of and engagement with nature, and the resulting possibility that, out of a creative action, one might determine a consistent supply of food and resources.

The option to establish or at least work toward such security forms the crucial foundation for “Life, Liberty and the Pursuit of Happiness.” One could, with justification, say that the right to plant a seed, harvest it, and benefit from the fruit of one’s labor is our most essential right, and informs our judicial oversight, our nation’s laws and even the capitalistic form of exchange.

When Chief Biggie-Wiggie decided to appropriate the grain that Oogah grew just because she was chief and could, she also appropriated Oogah’s labor and creativity. Certainly Chief Biggie-Wiggie might, through some coercion, prevent Oogahh from farming, or she could demand that O only plant yams (which BW has a taste for). In either case, BW is usurping O’s liberty and personhood. When feudal lords and landowners demand payment in kind from serfs and sharecroppers they are essentially being paid by labor and goods in exchange for the right to work the land. When the government controls all forms of production, and owns and distributes the fruits of production, we call it communism. Given the protections elucidated in the United States constitution, what do we call it when the government arbitrarily denies a person the right to plant a seed?

Seeds, of course, may be purely conceptual, and as such, the right to plant them is solidly elucidated in the first amendment to the US Constitution. Freedom of speech, religion and the press are the basically the right to plant seeds of thought.

Real seeds, as much as virtual seeds are the way we control and sustain our future. Even if not specifically stipulated in our Constitution, the right to plant a real seed certainly falls under the category reflected in the ninth amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In spite of the essential absurdity of prohibiting a person from planting a seed in a flower pot in the privacy of her own home (which constitutes an obvious abridgment of the ninth amendment), it is, never-the-less, a practice deeply entrenched in our culture under the aegis of the “war on drugs,” specifically in the Controlled Substance Act, and held in place by an unholy collusion between hand-holding lefties and fraidy-cat righties trying desperately to make the world a “better place,” at least in their own lights. Yet, it is just these groups that, for disparate but equally compelling reasons, should be fighting this infringement of rights tooth and nail.

The Righties should be fighting it because of their insistence on the tenants of States Rights, and though the right to govern is shared by the central government and the states, the 10 Amendment declares, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; the Lefties, because of their stated insistence on basic human protections and personal sovereignty, the resistance to the incursion into one’s personal daily life and privacy by the government, and drawing inspiration from the above mentioned Ninth Amendment.

So, under what possible grounds may the United States Government legitimately prohibit the planting of a seed of choice? Asked another way, how can it justify that prohibition to everyone (except the one notable exception of Dr. Mahmoud ElSoly, president of ElSohly Laboratories, who grows cannabis under a US monopoly at the University of Mississippi, and is the beneficiary of a number of patents based on his exclusive position as national drug lord extraordinaire) of that most essential human right which is a precursor to, and makes possible those other rights that our forefathers deemed inalienable? Well, the government does a valiant attempt of it under the Commerce Clause (Article I, Section 8, Clause 3).

This clause, with the deceptively simple directive: that the United States Congress shall have power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, actuality gives vast powers of regulation to the federal government, particularly when it is paired with the Necessary and Proper Clause: The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers , and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. This basically means that the Federal Government can do just about anything it deems necessary and proper if it serves in the execution of its other powers.

Now, if that sounds to you like a slippery slope toward unlimited federal powers and potential abuse of state’s and/or civil rights, you are not alone. No less than the likes of Patrick “give me liberty or give me death” Henry, objected to ratification of the Federal Constitution, with its Commerce and Necessity Clauses because he felt that it allowed for unchecked power by a national government and would lead, inevitably, to the trampling of civil liberties. Henry didn’t even like the construction of the senate, and in fact, in one prescient statement he suggested that the “senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horribly defective: where are your checks in this government?”

It should, of course, also be pointed out that Henry was additionally objecting to the fact that no Bill of Rights was included in the original constitution, but one might justifiably question whether even the ultimate inclusion of these rights has actually checked the powers of the Federal government to control just about everything. This erosion of rights is endemic in the present structure and leaning of our government.

For example, though politicians would have you believe that an act of congress is needed to alter the categorization of drugs on the Controlled Substance Act which presently regards cannabis (marijuana) as “having a high potential for abuse; no currently accepted medical use in treatment in the United States; and a lack of accepted safety for use of the drug or other substance under medical supervision,” the truth is that one man, the US Attorney General, can arbitrarily change the classification, of say, cannabis from Schedule I to Schedule V, or remove it from the list all together, simply upon review of the data (per section 811 of the statute).

This means, essentially, one man, can tell the other 300,000,000 in a nation, what they can or cannot do to themselves, by themselves, with regard to certain personally held substances. Chief Biggie-Wiggie would be impressed.

All this power in the hands of one man is derived, essentially from the Commerce Clause coupled with the Necessity Clause. Patrick Henry, it seems, was right.

The Supreme Court of the United States has called into question the seemingly unlimited power granted to the federal government by the commerce clause in two specific cases: Lopez and Morrison. In the Lopez decision the Federal Government was prevented from enforcing a ban on hand guns in the classroom because, the court ruled, the mere possession of a handgun can in no way be construed as a commercial enterprise.

In Morrison, a section the Violence Against Women Act permitted the Federal Government to prosecute cases of violence against women in cases where women were notoriously under-served in this area by local courts. The federal prosecution of these cases was deemed unconstitutional, the Court stating: “Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur.”

It is interesting that the Supremes did some backpedaling in Raiche v. Gonzalez, a case specific to the growing for personal use of medical cannabis in California where it is, in fact, legal. Here the court, in a 6 to 3 decision, ruled that Congress may regulate non-economic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … and added (somewhat pathetically, to my mind): This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

One could question why the possession of a plant or the dried flowers thereof, is any more a commercial activity than the possession of a handgun, but when it comes to cannabis, rationality seems to fly out the window.

Yet, some sense prevailed. Justice Thomas, in his dissent to the Raich decision declared:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

And, indeed, he was right, for Jefferson and Washington, to name just two of the Founding Fathers, happily grew hemp (cannabis) and championed it as a valuable and necessary crop.

Given that, in the eyes of an unchecked government, a hemp seed today may become a grape, tobacco or tomato seed tomorrow, how many of our personal liberties are we really willing to sacrifice?

Finally, whether one approaches this issue from a Federalist point of view based on personal liberties, or regard it as States Rights issue, the right to plant a seed must be seen as essential to the sovereignty of the person, and as inalienable as Life, Liberty and the Pursuit of Happiness — because if we don’t do so, the only recourse a Ms. Oogah of today would have is to leave her tribe, and take with her all the creativity and enterprise that went with that initial discovery of agriculture.

Can we really afford to lose her? Or should we defend her, as Patrick Henry demanded of us in this most important admonishment:

You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.