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California Considers Historic "Weed Sanctuary" Status

[ Posted Wednesday, April 19th, 2017 – 17:52 PDT ]

A bill has been introduced in California's state legislature which would prevent the state's law enforcement officers (and any other state resources) from being used to: "investigate, detain, detect, report, or arrest a person for marijuana activity that is authorized by law in the State of California." The bill is based on a similar bill which would declare California a "sanctuary state" for undocumented immigrants. Either one would be the first of its kind on a statewide level. The marijuana sanctuary bill (AB 1578) would send a clear signal to both Donald Trump and Attorney General Jeff Sessions that the state is not going to take part in any new federal War On Weed. It just passed the Assembly Public Safety Committee by a vote of 5 to 2.

If enacted, the bill would be a new battle in the ongoing centuries-long American power struggle between states and the federal government. In modern times, such battles are being waged over divisive issues such as immigration law (the "sanctuary cities" idea), abortion, the Second Amendment, religious freedom (versus civil rights for all), to name but a few.

What I find interesting is that the newest arguments are being made from the left. Because up until recently, the "states' rights" argument was largely made by right-wingers, mostly on the subject of civil rights and racial integration. Southern states fought tooth and nail against federal laws which integrated schools and guaranteed full civil rights for African-Americans, and they leaned heavily on the "states' rights" argument in doing so. They'd point to the Tenth Amendment to the Constitution (the last one in the Bill of Rights), which reads: "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." Most Americans are unaware that this amendment even exists, at least these days. But splitting the hairs of what the federal government can and cannot do and how states can react to federal laws they don't like is not very clearly defined in the Constitution's text at all.

I said this was a centuries-long battle because the arguments started almost before the ink was dry on the Constitution. The first of these fights happened under President John Adams, America's second president. Politicians (and judges) didn't have to argue "the original intent" of the framers of the Constitution back then -- because they were still alive. And even they couldn't agree what the document actually meant in this regard.

As schoolchildren, we were taught a simplistic rule: federal law always trumps state law. Period. We were also taught the prime example of what could go wrong if this rule wasn't adhered to: the Civil War. But before there was talk of "secession," the root of the argument revolved around the concept of "nullification." Could a state, if it strongly disagreed with a federal law, "nullify" the law by voting in the state government to ignore the law altogether, or even block its implementation within that state? This is pretty close to what California is proposing to do on both marijuana law and immigration law.

The subject of nullification first came up in the aftermath of the Alien and Sedition Acts, which were passed so John Adams and his Federalists could jail or even expel aliens they didn't like (which included a whole bunch of newspaper editors who were their political opponents, but hadn't been born in this country). It was a purely political act of vengeance, and the Anti-Federalists protested loudly. Two state governments even passed resolutions which encouraged all the other states to join in protest and nullify the new laws (see the Kentucky and Virginia Resolutions of 1798 and 1799 for more details). Both walked right up to the edge of nullification, but didn't fully take the plunge. But when originally drafted, Kentucky proposed setting out the argument for doing so. In a clause that didn't make it to the final draft, the author proposed:

...where [federal] powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact (casus non foederis) to nullify of their own authority all assumptions of power by others within their limits: that, without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them....

In other words, they'd be fighting tyranny. The tyranny of the federal government over the state's. This clause didn't make it into the final draft the Kentucky legislature passed, but it is noteworthy for who penned it -- none other than Thomas Jefferson. The Virginia Resolution was drafted by James Madison, known as the "Father of the Constitution." At the time, the drafts were anonymous, because if the authors had been known, they might have faced charges of treason (or at the very least, sedition charges under the new acts). So two men who were intimately involved in setting up America's constitutional government were arguing that nullification was a viable remedy for states to take when they disagreed strongly enough with federal laws. How's that for "original intent"?

The concept of nullification didn't make it very far in the 1790s, but the argument would reappear roughly every 10 or 15 years or so, right up to the start of the Civil War itself. Even the Civil War didn't settle the issue, which lived on through the infamous Jim Crow period. School integration and the civil rights battles of the 1950s and 1960s brought it back into focus in the mid-20th century. The longstanding legislative efforts (at the state level) to chip away at Roe v. Wade are also essentially nullification arguments. Most recently, we've just emerged from a fierce period of state-versus-federal battles over gay rights and marriage equality.

But the Tenth Amendment position -- arguing for the right of the states to nullify federal laws they don't like -- is not actually an ideological one. The history might suggest it is, but the historical positions are now shifting on the political scale. Because now it is liberals -- out of power in Washington, clinging to their hold on deep-blue states -- who are making what is essentially the same argument. Federal law is quite clear on immigration. It is also quite clear on the illegality of marijuana for any and all purposes. "Sanctuary" is a modern way of saying "nullification," to put it slightly differently.

Passing sanctuary laws has both tangible and symbolic value. The tangible value is that the cops simply aren't allowed to do certain things to help the feds. Thus they're not actually breaking federal laws on the books, they're just refusing to enforce them -- some legalistic wiggle room, if you will. But all the state laws allowing marijuana use (including both recreational legalization and medicinal use) -- all of them -- are nothing short of an effort at nullification. States have said "we don't agree marijuana should be illegal" and they've openly defied the federal government by allowing use of a substance that is still highly illegal under federal law.

But in the War On Weed, weed is never going to fight back to the level of starting a new Civil War. States aren't going to attempt secession over marijuana legalization. Again, these laws are both symbolic and tangible. They're tangible to patients with medical marijuana prescriptions in roughly 6 out of 10 states, who can go to a dispensary and buy what they need without resorting to black-market drug deals on a street corner. But the symbolism is what will eventually change things for the better. Prohibition of alcohol ended in a similar fashion -- individual states got so fed up with things that they started taking matters into their own hands. When enough states had done so, the national politicians finally were forced to act to repeal Prohibition constitutionally.

That's precisely where the endgame of the War On Weed is right now. The number of states that don't even allow medicinal marijuana use is shrinking. Sooner or later the national politicians will realize that changing federal law is long overdue and is now politically safe to do. California is merely attempting to speed up that timeline, in reaction to a man being named to lead the Justice Department who wants to start waging the War On Weed II ("Bigger! Stronger! Even more pointless!").

California has almost 40 million people living in it. When recreational weed stores are fully legal (coming next year), thousands of them will spring up (like weeds, of course), throughout the state. They already exist in the states which legalized recreational weed earlier (like Colorado and Washington), although not in the numbers we'll soon see in California. If all those states passed similar "state sanctuary" laws which forbade their cops from helping enforce federal law, then the F.B.I. and the D.E.A. and all the rest of the federal police force is going to need a whole lot more cops if they even have a prayer of attempting to enforce this federal law, no matter what Jeff Sessions personally thinks.

The symbolism is clear: "We don't agree with this law, and we're not going to lift a finger to help you enforce it." But the tangible effect is cumulative. As more and more states see the reasonability of the idea of treating marijuana like alcohol (and reaping billions in new tax dollars, to boot), the federal forces are going to have more and more places to police on their own. So even if Sessions does ramp up the War On Weed, he is simply not going to have the number of troops necessary to effectively fight this war.

Sooner or later, the federal prohibition on weed will end. The trend is, at this point, almost irreversible. Sooner or later voters are going to treat this issue as a litmus test for those they elect to the national government. That's when congressmen will hastily reverse themselves in fear of losing their jobs. We're not quite at that point yet (at least, not in enough congressional districts or states). But we might be at the point where the largest state to legalize recreational marijuana yet stands up and says to the feds: "We are not going to help you enforce this outdated law."

Nullification does not stand up in federal court. If you're arrested and a federal case is brought against you, it does not matter what state law says. You can still be given a long prison sentence for taking part in an activity that is fully legal under your state's laws. Legalization (medical or recreational) never trumps federal law. But these attempts at nullification do send a strong political signal. Passing a weed sanctuary state law would merely amplify this message. Constitutionally, this is all fuzzy territory -- and has been ever since the 1790s. But if enough states join in such efforts, eventually Congress will react (when they start to fear for their own jobs). Prohibition ended, after all. The prohibition on marijuana use will too, and I'm betting that efforts like the proposed new law in California will a big part of the reason why, in the end.

-- Chris Weigant

 

Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant

 

19 Comments on “California Considers Historic "Weed Sanctuary" Status”

  1. [1] 
    Don Harris wrote:

    It seems to me that if you substitute citizens in the Jefferson quote it makes a good case for citizens to nullify the two party domination of our electoral process by voting to demand open primaries by hijacking the primaries in NJ in 2017.

    "..every citizen has a natural right... to nullify of their own authority all assumptions of power by others within their limits: that, without this right, they would be under this dominion, absolute and unlimited, of whoever might exercise this right of judgement for them..."

    The War on Weed is a valid and necessary topic. So is the War on We.
    Are you with we in the light or with them on the dark side?

  2. [2] 
    altohone wrote:

    Hey CW

    I believe in a previous column you mentioned that the Feds would need a court order to get participation from the state.

    But our courts are packed with drug warriors, appointed and supported by drug warriors, so this doesn't seem like much of a burden. If the tangible and symbolic benefits can easily be er, um, nullified, isn't the whole idea a bit like political lip service?

    I support the idea, but feel compelled to play devils advocate due to a decent grasp of how drug warriors wield their power.

    A

  3. [3] 
    TheStig wrote:

    Altohone, go check Georgia on My Mind thread for my take on Postol's analysis.

    I can't find Neilm's take on this - the threads are getting tangled.

  4. [4] 
    altohone wrote:

    Listen and ___

    I noticed that neither of you took the opportunity to condemn the cops who were filmed kicking handcuffed suspects in the head when I posted the link last week.

    Our little trumpling assured us he would do so when it was merited.

    Does this mean neither of you consider the acts worthy of condemnation?

    How about this for a bit of highly trained professional behavior by our law enforcement gang-

    http://www.huffingtonpost.com/entry/boy-with-autism-arrested-at-school_us_58f754dde4b05b9d613eac5f?3m&ncid=inblnkushpmg00000009

    Just following orders... can't assess the situation for themselves.

    A

  5. [5] 
    altohone wrote:

    TS
    3

    Got it.
    Response in Georgia is up.

    A

  6. [6] 
    neilm wrote:
  7. [7] 
    Don Harris wrote:

    CW-
    Probably should have saved this topic for 4-20 .
    Speaking of 4:20, a few weeks ago a caught an episode of Burns and Allen where a shrink thought that George's friend (Harry, I think) was George. George picked up on this and pretended he wasn't George.
    When Gracie came in the room and called George by his name the shrink said something like "But I thought he (Harry) was George."
    George said something like "That was earlier. After 20 past four he becomes Harry and I become George."
    So maybe 4:20 existed before the fabled group got together to smoke pot after work or school or whatever that story is.

  8. [8] 
    Balthasar wrote:

    Probably should have saved this topic for 4-20

    Looks like someone started his Weed Day celebration early!

    Happy Weed Day! Or as it could be called in my house, "Act like a Jellyfish Day"...(that is, jellyfish with WiFi and a kickin prog rock playlist)... I'll think of y'all whilst I soak up tunes and smoke in a well-bubbled bath.

    Also, for the rest of today, I will refer to Jeff Sessions only as "Blunt", because he's short, powerful, and confuses people.

  9. [9] 
    Don Harris wrote:

    "Looks like someone started his Weed Day celebration early."
    Yep. Started in 2016 on 4-21.
    But I am an originalist concerning Weed Day. I still consider National Marijuana Day that was celebrated long before the recent incarnation of 4:20 with marches into Central Park on the first Saturday in May to be Weed Day.
    There was even years when they walked around passing out joints like throwing out candy at an Easter or Halloween parade.

  10. [10] 
    Don Harris wrote:

    One of my favorite memories (or hallucinations) from National Marijuana Day in Central Park was when a friend and I were about 150 or so feet apart throwing a Frisbee.
    Just as I threw it a girl walked between us at about 75 feet. Before I could say anything, the Frisbee skipped off the top of her head and went right to my friend.
    Couldn't do that again in a million years. Too bad we didn't have the camera phones back then.

  11. [11] 
    ListenWhenYouHear wrote:

    Al [4]

    Didn't comment because I did not see it. Any officer who assaults someone in their custody that is not resisting or combative should face disciplinary action and possibly criminal charges, if they are warranted. Once a person is under police custody, the penalties for brutality by an officer should be much greater.

  12. [12] 
    ListenWhenYouHear wrote:

    al,

    As for the Florida kid being arrested, the mother claims the boy is autistic. It seemed odd that the school was not aware of that fact. Where is the proof that he is?

    If the boy was trespassed from the school after he physically attacked a teacher - which usually happens - if that trespass order was still good and the boy returns to the premises, then arresting the child when he showed back up and violated the trespass order is what the law requires the officers to do.

    If the mother had not cleared up the issue with the school prior to taking the boy back up there, then that is on her! The mother supposedly pulled the kid out of school following the attack on the teacher and didn't bother to have any further communication with them regarding the incident.

  13. [13] 
    altohone wrote:

    Listen
    11

    Thank you.
    What do you think about one cop getting fired while the other was just reassigned though both did the same thing?

    12

    The article provided a bunch of those details.
    The school and teacher knew the boy is autistic, the "attack" was a kick in the legs which is a common reaction by autistic kids, the mother didn't pull the kid out of school he was kicked out, and then the school asked her to bring him back.
    They even issued a statement to the effect that they didn't ask her to bring him back in order to arrest the boy... his suspension was just up.

    The prosecutor didn't know the details and is ultimately to blame.
    But the cops arresting a ten year old boy after being informed he was autistic and not stopping to question the situation is odd.
    It shouldn't be so routine.

    I am generally opposed to having police stationed in schools and the way kids are frequently being arrested now, when in the past a kid having a temper tantrum (or getting into a fight or whatever) would have just resulted in a suspension.
    But since this new approach doesn't seem to be going anywhere, at the very least it should be handled competently.

    A

  14. [14] 
    ListenWhenYouHear wrote:

    al,

    Again, don't know all the details on the case to know why one is fired and the other wasn't if they did, in fact, commit the same crime. Just a guess, the one fired had previous discipline actions against him as most guild contracts call for progressive discipline except for the most extreme instances.

    They'd updated the article on the autistic kid, as it did not have all of that info when I first read it. But as to his being arrested:

    According to her, deputies arrested the child after a school resource officer identified him as having an outstanding warrant for assault ? something that Haygood is heard saying in the video that they weren’t aware of.

    A court ordered warrant will be enforced as it is written. The charge is third degree felony assault.

  15. [15] 
    altohone wrote:

    Listen
    14

    Yeah, the details are few.
    The cop who was only reassigned had just been involved but cleared in a shooting incident that seemed a little sketchy... a witness saying one thing, the cops another and the cops version being believed... hardly unusual, but the kicking incident does make you wonder if that decision was correct.

    As far as the kid goes, it sounds like they may have updated the article since I read it too.
    Third degree felony assault for a ten year old boy with autism?

    Does that make sense to you?

    Are court ordered warrants for ten year old kids so routine that nobody asks questions?
    And it means the teacher had to have pressed charges right? Or could this have happened without her knowledge too?

    A

  16. [16] 
    ListenWhenYouHear wrote:

    al,

    You cannot look at only two incidents and think that somehow shows the character of the officer while ignoring their handling of the other ten thousand incidents that they responded to without any issues. That's like someone taking only two of your posts on here and deciding what kind of person you must be from them. How fair is that?

    As for the ten year old, charges had to be pressed by the teacher he kicked for those charges to be filed. It also sounds like the police attempted to contact the parents of the boy and they refused, thus a warrant was issued. The family took the kid out of the school the day he kicked the teacher and did not return according to the first version of the article. Warrants are not issued unless someone is evading contact with the police.

    If the kid is autistic, then the court will take that into consideration. It isn't the job of the police to make that call, especially since the person who wanted the charges knew of the boy's condition.

    Personally, I have no issue with the boy being arrested if he kicked his teacher. That's how people learn that there are consequences for their actions. It's easy to excuse the actions of those with medical/mental disabilities as not being their fault, but that does nothing to help them. It's pity. Who likes being pitied?

  17. [17] 
    altohone wrote:

    Listen
    16

    I hear you on the two incidents bit.
    We don't know if there was a pattern of prior behavior that is questionable or not.

    But in a case decided on a "he said, he said" basis, when one of those involved does this two weeks later, it makes me wonder.

    We're going to have to agree to disagree on the autistic boy.
    A trip to the principle and a suspension used to be a sufficient consequence and future deterrent, and I don't support making these things police matters.

    I wish there was reporting on what, if any, injuries were sustained by the teacher in the incident. That would help clarify a few things.

    A

  18. [18] 
    ListenWhenYouHear wrote:

    "A trip to the principle and a suspension used to be a sufficient consequence and future deterrent, and I don't support making these things police matters."

    I agree, but in this case the mother immediately pulled the kid out of the school which pretty much prevented any consequences from occurring. Some parents do far more damage by their attempts to protect their children than the child would have faced on their own.

    Warrants do not typically get written in cases like this unless the police are unable to make contact because the person is evading their attempts. Had they just dealt with the issue when it occurred, this wouldn't have had to occur. And again, because of the choices made by the parent, the police are made to look like the bad guys for simply doing their job.

  19. [19] 
    altohone wrote:

    Listen
    18

    The statement from the school suggests she was told to remove the boy from school, and the police failing to make contact or being unable to are both different than the mom actively evading the police.

    I didn't see the details in the article that would be necessary to shift the blame onto the choices made by the parent.

    "the police are made to look like the bad guys for simply doing their job"

    Whether it was the actions of the parent, a failure of the bureaucracy in the school or court, or a system that has made these things so routine or that prevents the police from exercising some judgment, I'm glad we agree it shouldn't have been part of the job for the police in the first place.

    A

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