Thursday, September 26, 2013

Has the Federal Government Inadvertently Set a States' Rights Precedent? Delegates Sobonya and Cowles Think So

Since 1819, McCullough v. Maryland has served as the law of the land.  At that time, state governments exercised more power and held more credibility than the still infant federal government.  Chief Justice John Marshall and the Supreme Court sought to bolster the federal government's position to prevent disruption from jealous states.

Marshall wrote the opinion broadly enough so that it legally prevented any state from officially acting in contradiction to any federal policy or agency.  State police cannot even legally pull over a federal vehicle that is speeding.

Obviously this decision came in the context of its times.  The federal government was very small and claimed few powers.  Some of the states had existed for almost or over 200 years as political units.

Delegates Kelli Sobonya (R) Cabell, and Darryl Cowles (R) Morgan, think they may see a breach in the iron wall of McCullough.  

In a recent Legislative committee meeting on medical marijuana covered by the Charleston Daily Mail , Sobonya queried about the inconsistent enforcement of marijuana laws by the federal government.

If Sobonya and Cowles are right, then the Obama Administration may have opened the door to states ignoring laws that they find onerous to their citizens.  EPA regulations and Obamacare were cited by the delegates as examples.

Delegate Gary Howell (R) Mineral later noted "civil society depends on rule of law.  You can't just have the president and his political aides pick and choose what to enforce.  Then we have a government of men, not of laws, which John Adams saw as a prime threat to liberty."  He also SAID that the inconsistent enforcement could set a precedent where states can legally defend their own interests.

It should be noted that no court or statute has ever refuted the Virginia and Kentucky Resolutions penned by James Madison and Thomas Jefferson.  If the federal government violates the Constitution, according to Madison in the Virginia Resolution, "necessary and proper measures" must be taken to protect the people's rights.    Madison never specified what those ought to be.  At the very least, it would seem that Virginia, Kentucky, and West Virginia can refer to these works as grounds of legal argument.

Post Script:  Full disclosure.  I support legalization of medical marijuana.  Frankly those who support it should take more issue with the Obama Administration's non enforcement than with either enforcing or getting rid of the law.  By not enforcing the law, Obama is allowing businesses to grow.  Those businesses will always be subject to legal extortion by the federal government because the law can always be held over them as a Sword of Damocles.

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