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

A statement from 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 Federal courts have consistently ruled that federal laws are superseded by the Constitution and by international treaties.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.

(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.

Legalize. Regulate. Educate.