I haven’t had time to read all of the information presented by Stanford. It looks very interesting.

I don’t know much about treaty law. But, I can recognize a fundamental freedom. And if the fundamental freedoms of American citizens are subordinate to treaties, then we are all pretty screwed.

-ED

Why the Cannabis Tax Act Will Be Upheld in a Court of Law

A statement from D. Paul Stanford, one of the directors of the Campaign for the Restoration and Regulation of Hemp (CRRH), the political action committee sponsoring the Oregon Cannabis Tax Act:

In the United States, laws are ruled unconstitutional in federal court when a law is shown to violate the Constitution and/or international treaties. Federal courts have consistently ruled that federal laws are superseded by the Constitution and by international treaties. Laws are routinely struck down as unconstitutional when the laws are found in violation of “constitutional law.” Courts are directed in the U.S. Constitution to decide cases based upon the Constitution and international treaty requirements, federal legislation is secondary. To date, no state has attempted to regulate sales of a controlled substance in violation of federal laws, so questions concerning this are quite valid and understandable.

First, it should be noted that some have argued the constitutionality of cannabis prohibition in courts in criminal and civil proceedings, myself included. The courts have ruled in every instance that this is not a judicial issue, but rather a legislative one. The courts hold that they do not make the laws, that the legislature does, and that the only way to address these issues is through the legislative process. Since state legislators have never intentionally passed laws to regulate sales of a Schedule 1 controlled substance, the courts have never been called upon to rule upon any such proposal. Since electoral and legislative priorities are economically driven, and our constituency is outnumbered and out spent by those with an economic interest in prohibition, our ability to affect the legislative process is limited. It is unlikely that reform to regulate legal cannabis sales will be initiated by any legislative body. We are left with the initiative process.

Oregon was the first state to implement the initiative in 1902, and Oregon’s initiative process is still the most liberal in the country. Oregon allows signature gathering for up to two years, depending on when the initiative is filed. All other states limit petitioning to six months at most. Oregon is comparatively small, so the actual number of signatures required to qualify for its ballot is a fraction of most other states. Oregon petitions need less than half of the number of signatures that one needs to gather in 180 days in Washington State and less than an eighth of what is needed in California in five months. In fact, many governmental innovations over the past 100 years have been implemented in Oregon first, including marijuana decriminalization in 1973, Labor Day, doctor assisted suicide, land use planning and environmental regulations such as the “Bottle Bill.” Even the Clinton administration’s “Reinventing Government” proposals are largely based on Oregon’s “Strategic Benchmarks” program.

The War on some Drugs and the federalization of cannabis prosecutions has had a greater impact on Oregon than elsewhere. Most people here know someone who has been subjected to the horrors of criminal prosecution for cannabis. We crafted our proposed legislation, the Oregon Cannabis Tax Act (OCTA), which we are working to implement through the initiative process, to be upheld in federal court, since it will definitely be decided there. We did that by writing OCTA in compliance with international treaties and the Oregon and U.S. constitutions.

The Oregon Cannabis Tax Act (OCTA) sets a number of constitutional findings by the people of the state of Oregon in an extensive preamble, which is fully one third of the text. Some of those findings specifically refer to the Oregon Constitution, but each Oregon constitutional provision cited is explicitly paralleled in the U.S. Constitution. We decided to rely on the Oregon Constitution since federal courts have ruled that it provides even more rights to the people than the U.S. Constitution. However, the citations we rely upon for OCTA are duplicated in the U.S. Constitution almost verbatim.

Our findings by the people of the State of Oregon are, in condensed form:

1. that cannabis prohibition denies equal protection under the law, as provided in the U.S. Constitution’s 14th amendment and the Oregon Constitution’s Article 1, Section 20, since it grants special privileges to alcohol users and imposes sanctions upon cannabis users;

2. cannabis prohibition violates the 4th Amendment to the U.S. Constitution and Article 1, Section 9 of the Oregon Constitution by allowing unreasonable search and seizure;

3. cannabis prohibition violates the purposes for which our constitutional government was implemented as outlined in the preamble to the U.S. Constitution and Article 1, Section 1 of the Oregon Constitution;

4. cannabis prohibition denies freedom of worship, as constitutionally protected in the U.S. Constitution’s 1st Amendment and Article 1, Section 3 of the Oregon Constitution, since it prohibits cannabis, which is an “herb bearing seed” given to people in the Bible at Genesis 1:29;

5. the prohibition of cannabis causes the social ills it was instituted to stop, just as alcohol Prohibition caused the same social ills from 1920 to 1933;

6. cannabis prohibition has failed, since marijuana is the largest industry in Oregon even though it is prohibited;

7. the U.S. Constitution’s framers were hemp farmers and wrote of hemp’s utility, which we detail;

8. many courts have recognized that cannabis prohibition is wrong, which we detail;

9. that cannabis is environmentally and economically beneficial and it was prohibited because of its industrial potential, based upon misinformation, to protect the economic interests of the few, to the detriment of the economic interests of the many;

10. cannabis prohibition by the federal government violates the Tenth Amendment to the US Constitution, which says that rights not granted the federal government are retained by the state government and the people;

11. cannabis prohibition violates one’s right to privacy, as guaranteed by the Ninth Amendment to the US Constitution and Article 1, Section 33 of the Oregon Constitution, which says that the people retain un-enumerated rights and those include a right to privacy; this was one of the Alaskan Supreme Court’s findings in Ravin v. State (1975), which legalized personal private cultivation and possession of marijuana in Alaska.

OCTA was specifically written to withstand a federal court challenge and be upheld.

OCTA prohibits and penalizes the illegal export to other states of legal Oregon cannabis. Thus, OCTA is an intrastate rather than an interstate issue and not federalized via the federal supervision of interstate commerce [proposed ORS 474.115]. We direct the Oregon Attorney General to seek repeal of federal cannabis prohibition if a federal court or agency moves to block implementation of OCTA, through federal legislation and to defend anyone prosecuted for violating federal law for activities licensed under OCTA. Any related costs would be funded solely from commercial growers’ license fees [proposed ORS 474.075(1) & 474.315].

OCTA complies with the Single Convention Treaty of 1961 and its 1972 amendments, as well as both the U.N. Treaty on Narcotic Drugs and Psychotropic Substances of 1971, and 1988. Proposed ORS 474.035(2) complies with requirements of licensing under these treaties by specifying, “the area, plots and extent of lands to be cultivated.” ORS 474.035(3) licenses processing and handling of cannabis as directed by the treaties, within the time directed by the treaties, four months. The treaties require that a state commission controls licensing, storage, and distribution of cannabis and ORS 474.035, 474.045, 474.055, 474.065, & 474.115 meets all of those requirements. Oregon is one of the 26 liquor control commission states, where state commissions control the production, distribution and sales of distilled alcohol products. We already have a commission and distribution system mandated by the international treaties (see below) in place, so we don’t have to create it from scratch to meet this requirement of international treaty law.

Proposed ORS 474.045(a) complies with the medicinal application that treaties have recognized. Proposed ORS 474.045(b), 474.075(3)(c & d), 474.085, 474.095, 474.115, & 474.205 comply with the scientific applications that treaties have recognized. Our proposed ORS 474.005(5), 474.035(1) and 474.085 complies with the industrial applications of cannabis and hemp as recognized by international treaties.

OCTA would also mandate numerous scientific studies of cannabis, and of cannabis prohibition versus regulation in the state of Oregon. OCTA details and funds these studies. We believe that the use of cannabis by minors will drop precipitously and that these studies will demonstrate this. Section 1 of OCTA designates this as a scientific experiment by the people of Oregon. We regulate the sale of cannabis and medicinal and industrial applications of cannabis according to the explicit wording that international treaties require.

That is why OCTA complies with the U.S. Constitution and international treaty obligations and will supersede the federal laws applied to cannabis. That is why OCTA will be upheld in a court of law after the inevitable challenge it will face upon passage. We drafted OCTA to do just that.

To quote the treaties specifically:

The, Article 28, “Control of cannabis”:

1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in Article 23 respecting the control of the opium poppy.

2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.

3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.

[End quote]

So you can see that, according to Article 28, Section 1, we can apply the same system of controls that opium is subject to. Also, Article 28, Section 3 states that we can adopt measures “to prevent the misuse of, and illicit traffic in…the cannabis plant.” OCTA does exactly that, in that it prevents the misuse and illicit traffic in cannabis. Illicit and misuse are key words! If we apply the same system of control as required by treaty to be applied to opium and cannabis, then the controlled traffic is legal and allowed if it is to prevent misuse and illicit traffic. All other citations in the treaties concerned specifically refer to “illicit” traffic. So we wrote OCTA to comply with the requirements stated in the SCT, articles 23 & 28. Section 1 of OCTA designates that this is a scientific experiment to lower misuse and illicit traffic in cannabis, just as the SCT mandates. Throughout OCTA, we denote how our proposal will lower misuse and illicit traffic in cannabis. I have transcribed the entire text of SCT Article 23 below, as I just did for Article 28 above.

Single Convention Treaty, Article 23, “National opium agencies”:

1. A Party that permits the cultivation of the opium poppy for production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this Article referred to as the Agency) to carry out the functions required under this Article.

2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium:

(a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of the opium poppy for the purposes of producing opium shall be permitted.

(b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.

(c) Each license shall specify the extent of the land on which the cultivation is permitted.

(d) All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.

(e) The Agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations.

3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it.

[end quote]

OCTA sets up the agency required by the SCT, and meets these and all other conditions set forth in the international treaty. I believe that federal courts will, upon passage of OCTA, be obliged to respect the will of the electorate, the findings by the people regarding historical and constitutional citations made in OCTA’s preamble and treaty obligations. OCTA will become effective and cannabis will be legally regulated and sold in Oregon’s state liquor stores because OCTA was designed so that it will be upheld in court.

We’re not saying, at this point, that the U.S. should adopt any federal law. We are saying that our legislation complies with the constitutional and international treaty requirements that allows it to supersede federal law. First, we have to gather enough signatures to make the ballot, then we have to win the election in November 2010. If it passes, it will go into effect unless someone files in federal court asking that OCTA be reviewed. The DEA, PDFA and other drug warriors will file in court seeking an injunction to stop OCTA from going into effect. However, after we win the election they will not find a jury in Oregon to convict a person for violating federal cannabis laws. Once the drug warriors in Oregon file in federal court seeking an injunction, a federal judge in Oregon will decide whether to issue it or not. The Oregon judge’s ruling can be appealed to the 9th Circuit Court of Appeals, and the 9th Circuit’s decision can be appealed to the U.S. Supreme Court.

OCTA is based upon constitutional law and international treaty law. This is the proper way to invalidate a law within our system of government, the federal drug prohibition, USC Title 21, Chapter 13. OCTA is not in violation of constitutional law or international treaties, OCTA is in full compliance with them and bases its departure from federal law upon constitutional grounds. The Tenth Amendment to the U.S. Constitution reserves powers not granted in the Constitution to the federal government to the states and the people. We are exercising a right not granted to the federal government in the U.S. Constitution, the right to regulate intrastate commerce (expressly not interstate commerce, since that is a federal power.)

When our opponents claim that OCTA violates federal law, we will say that OCTA will be upheld in court because it is based upon constitutional and international treaty laws that supersede federal legislation.

In descending order, sans blockquotes:

No. I’ve done plenty of lookups and research. You go research SCOTUS decisions on religious use and report back. You show me how you’re going to pull this one off, because I’ve interviewed dozens of the brightest attorneys who haven’t succeeded there yet.

Yes, everyone has the right to religion. Yes, prohibiting cannabis as sacrament is fundamentally wrong. One day that will be realized, but not while Joe Public thinks we’re subhuman. I’m going to bring cannabis up to the level of alcohol, change perceptions of cannabis users, and then get it fully legalized.

And if you’re so hip on cannabis sacrament, why do you oppose a measure that allows you – untaxed, no fees, unmolested – to grow and smoke all you want?

Guns in the airport? Fine, sure. It’s Bill Maher’s “Fly at Your Own Risk Airlines”

Yes, corporate personhood is also an abomination. Fact is, it ain’t even a law, it was recognized in a introductory document to a case once, as an off-hand comment. But while you feel free to build castles in the sky, I’ve got to work within the reality-based community.

Jesus, man, who is this big bad hemp industry that has the grand conspiracy to go untaxed, even though as a commercial product, like alfalfa or oats, government can and will be taxing it, too, you betcha? Good Lord, it’s farmers! Eeek! And timber mills, put back to work making hemp pressboard! And biodiesel fuel for cars that puts out less greenhouse gas, costs less to produce, and is the most efficient oilseed crop for making fuel? It’ll run in any diesel without costly conversions and might cost about $1.66/gallon right now.

Sidestepping freedom. Hmm. I want to create a law where thousands of Oregonians will be free from arrest and imprisonment for using cannabis. Interesting concept. Because I won’t overturn corporate personhood, overturn religious use precedent, and explicitly tax hemp. Have I got it straight?

Given your extensive legal knowledge, I’m not quaking at the pronouncement “this law will never stand”. Many very gifted attorneys have crafted this over ten years to conform to international treaties on the control of psychotropic drugs. Treaties (as you know) are considered “the supreme law of the land” in our Constitution, and carry the full force of law, so long as they are not unconstitutional. We went to great pains to provide lots of defense with opening clauses that are the findings of the people, and also didn’t explicitly do anything unconstitutional.

But let’s play worst case and say it gets on the ballot, passes, is injuncted facing SCOTUS appeal, is defeated by court. We’re no worse off than we were before, we became the first state to ever vote for cannabis regulation, we got the whole nation considering “why not”, and we’ve moved the ball forward on getting what you want in the long run – natural unencumbered freedom of mind – by softening people’s attitudes towards cannabis and other drugs in general.

Pipe dream. Nice pun. You think you can get religious freedom passed before I can get buds in liquor stores, and I’ve got the pipe dream?

You go right ahead and get your Oregon legislator to raise taxes on rich people. Talk about pipe dreams.

Sidetrack? Ha! That’s why you’re here.

{{See, folks, what concern trolls do is relentlessly infect a single thread in a forum, play-acting like they’re on your side, but in a way to confuse, sow doubt, dash expectations, and waste influential bloggers’ time. I would not be shocked if Evil Dick is an ONDCP intern tasked to mess with pro-marijuana sites. ‘Twould be a clever handle, since I always joke about Dick Cheney listening in on me. Nah, too conspiratorial… see, see what they do to me???}}

You misunderstand SCOTUS decisions on religious use. The court made it clear they would never recognize use of psychoactive substances except under very limited sincere tribal religious use exceptions.

Please cite the case.

The fundamental question is:
Do American citizens have a right to their own religious beliefs?

If the answer is yes, then the rights of individual citizens to find/create/experience their own religion must be respected.

If the answer is no, then there is no religious freedom in America. The government asserts that it has the authority to dictate the religious beliefs of the people. Given enough publicity, I don’t think even this court would have the audacity to make that call.

I cannot understand why you think cannabis should be treated differently than alcohol. Are you vigorously opposing the Oregon Liquor Control Commission?

In one case, I think that it is appropriate that alcohol and marijuana be regulated the same way. That is, if a person demonstrates an inability to use the substance responsibly, then that person should be denied access to it. How about a comprehensive recreational drug law, one that includes alcohol, one that acknowledges the right of citizens to use recreational drugs responsibly, but denies access to those who fail to use the substances responsibly?

The effects of alcohol and marijuana are very different. This might be justification for some difference in regulation. But, the basic principle around which the law should be constructed is that the right to use these substances responsibly is acknowledged and respected by the government. Government has no legitimate interest in prohibiting citizens from using these substances in a responsible manner.

Do you go around shouting “Fire” in crowded movie theaters? Pack your handgun in the airport?

Of course, I believe that you should be able to pack your handgun in an airport. I would not condone using the handgun irresponsibly, in the airport or anywhere else. I’ve heard that the National Guard brings combat firearms into the airports, since the 911 attacks. I am probably less likely to abuse my handgun in an airport than many of the members of the National Guard, who are permitted to carry their weapons there. In society, there should be an expectation that we behave ourselves civilly.

If there is a fire in a crowded theater, it might be a good idea to let someone know about it. Better get yourself and your family to the door first, though. Now, if you yell “fire” when you know there is no fire, intending to create pandemonium, and without regard to the safety of your fellow citizens, I would consider that an abuse of speech, not protected by the First Amendment.

But if you want to be producing mass quantities of those things, buy and sell them, and use them within our shared society, there are additional risks that we are all subject to. We hold bananas, cigarettes, aspirin, rum, and artichokes to this standard… why not cannabis?

Russ, I believe that the government has full authority to regulate all commercial activities in a responsible way, for the benefit of the citizens of our country. That is why I objected to this law’s definition of a commercial entity as a “person.” Corporate entities are not persons. They do not have natural rights. They should be fully subject to appropriate regulation by the government. The government itself exists at the will of the people. We, the people… It has no authority to create entities with rights equal to, or superior to, those of natural born citizens. We, the people, rule this country. I would like to see us all do a better job, though.

Oh, but, again, I must point out that, though this law is called the “Cannabis Tax Act,” it places no explicit taxes on the hemp industry. If this is a cannabis tax act, it should certainly call out explicit taxes on the hemp industry. But, having been written by, and for the benefit of, the hemp industry, this important text has been omitted.

Vigorously oppose all you want. Enjoy the status quo. Keep being a contrarian. You go right ahead with your plan to wait for the citizenry to erupt in revolution and demand their natural rights from the big bad oppressive freedom-hating gub’mint. What’s a few hundred thousand more marijuana arrests, in the meantime, anyway?

I do not enjoy the status quo. The reason I must vigorously oppose this law is that, if something like this is implemented, the issue of freedom will be sidestepped. The people will continue to submit to a legislative oppression which tramples their rights. The issue of freedom must be dealt with first. Then we can discuss appropriate regulation. Besides, this law will never stand.

I want to walk into a liquor store, lay down $20, and take home some quality-controlled, content-labeled cannabis buds. As I smoke them, I want to know that $10 bucks just helped buy some schoolbooks and some immunizations for kids, not a new Xbox game for my dealer. I want to do all that and not worry about a ticket or an arrest.

This is a pipe dream. You know that the federal government will assert a superior dominion in the matter of non-medical use. The USSC will back them, and the law will be nullified. Your best hope to win a case is to demand that the government respect your right to use cannabis responsibly. And, that is where you should have started in the first place. I want to stop this law because, by ignoring the issue of personal freedom, it continues to subject the people to legislative authority which is not legitimate.

…government should derive funds from progressive income taxation.

I think that the legislature can set income taxes in this state, can’t it?

But, I don’t want to sidetrack our conversation. This brings in a much larger issue of responsible government, too broad to address in this forum.

-ED

OK, Dick.

No, I have no financial interest in this law. I’ve never grown. If I did, I wouldn’t have the time nor interest to grow for anyone but myself.

You misunderstand SCOTUS decisions on religious use. The court made it clear they would never recognize use of psychoactive substances except under very limited sincere tribal religious use exceptions.

Also, while members of Oregon NORML are petitioners and volunteers for the Oregon Cannabis Tax Act, it is not an officially-sponsored initiative from NORML. I personally support it; national NORML will have to offer their own opinions.

I love the argument that NORML wants marijuana prohibition to continue because it has a great financial interest in it. Yeah, the people crippling their career opportunities and standing up to derision and ridicule as “potheads”, volunteering dozens of hours per week, watching their friends be arrested and acquaintances die in prison or awaiting transplants, presenting a huge target for snooping law enforcement, alienating some friends and family, they’re risking it all in a subversive attempt to secretly keep prohibition in place so they can reap the massive windfall profits garnered by $4.20 annual donations from curmudgeonly libertarians. Yeah, that’s it, and we planted the plastic explosives in Tower 7, too.

I cannot understand why you think cannabis should be treated differently than alcohol. Are you vigorously opposing the Oregon Liquor Control Commission?

Finally (doubtful), do you really believe “A right is something that the government has no legitimate authority to molest”? Do you go around shouting “Fire” in crowded movie theaters? Pack your handgun in the airport?

Yes, I believe people should be free in their consciousness to use drugs responsibly. You go walk out into a forest and chomp on a mushroom. Smoke a bud. Find some coca and process it into a powder. Get some opium out of a poppy. It is your right. I won’t tax or bust you.

But if you want to be producing mass quantities of those things, buy and sell them, and use them within our shared society, there are additional risks that we are all subject to. We hold bananas, cigarettes, aspirin, rum, and artichokes to this standard… why not cannabis?

Vigorously oppose all you want. Enjoy the status quo. Keep being a contrarian. You go right ahead with your plan to wait for the citizenry to erupt in revolution and demand their natural rights from the big bad oppressive freedom-hating gub’mint. What’s a few hundred thousand more marijuana arrests, in the meantime, anyway?

And quit ascribing nefarious conspiracies to my motivations! You know what I want? I want to walk into a liquor store, lay down $20, and take home some quality-controlled, content-labeled cannabis buds. As I smoke them, I want to know that $10 bucks just helped buy some schoolbooks and some immunizations for kids, not a new Xbox game for my dealer. I want to do all that and not worry about a ticket or an arrest. That’s it.

And if it brings in tax revenue*, and revitalizes the struggling family farm industry, gets mills working again on hemp fiberboard, provides medical marijuana for dying cancer patients, and creates a burgeoning new cottage industry of home growers selling to the state rather than a criminal black market, great!

(* Yeah, government should derive funds from progressive income taxation. I agree. Ever try to get a tax increase passed in the State of Oregon?)