Home Legislative Are We Nearing the End of State-Level Legalization?

Are We Nearing the End of State-Level Legalization?

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© Stock Pot Images / Dale A. Clark

Nothing lasts forever, including the fight to legalize cannabis in the United States. Of course, we would rather the fight ends in complete victory, i.e. marijuana is legal to use, possess, grow, sell and share for all adults, no matter what the reason. But there is another ending we must consider, because if we don’t consider it, we make it even more likely to happen.

I’m talking about legalization coming to a grinding and disappointing halt. Something better than prohibition, so we’ll end up accepting it, but something that falls far short of freedom from prohibition. A kind of hodgepodge of conflicting restrictions and regulations that strangle the legal cannabis industry and keep it from every reaching anything close to its full potential.

If this seems like a cynical read of the situation, it is. But that doesn’t mean it won’t happen. Consider the following:

So far legalization has had all of its success on a state and local level in the U.S. But activists are running out of states where legalization can be brought directly to the voters. As we move into an era where legalization has to go through state legislatures, progress has considerably slowed. Adult-use legalization has died for now in New Jersey, after much fanfare. Progress has ground to a halt in New York after legalization was not included in the budget. And now comes word that legalization has been delayed in New Hampshire while commercial sales in Vermont have been pushed into next year.

Does anyone really think we can trust politicians to do this right? After all, it was politicians who made a harmless plant illegal in the first place based on false information. And while lawmakers haggle over tax rates and THC limits and just how many coveted licenses will be bestowed upon companies based on varying and shifting standards, people are criminalized for no reason.

Of course, legalization on a federal level would go a long way toward bringing state lawmakers around on the issue, but here we run into the same problem. And that issue is that enough members of the House of Representatives have to agree with enough members of the Senate – and they have to agree with the President before anything happens. And who believes the end result of all of that agreeing will be some robust form of legalization? The best that can be hoped for is that the federal government will de-schedule cannabis and allow states to set their own policies without interference, in which case we go back to lawmakers in the states, albeit lawmakers who would have one less excuse not to support legalization.

A dire view to be sure, but one that must be looked at if it is to be avoided.

2 COMMENTS

  1. I respectfully disagree as more southern states are realizing the expense of continuing the war on drugs, and more specifically the war on cannabis.

    I know this isn’t saying much.. But, Mitch McConnell, legalizing hemp, for example is something that wouldn’t even be considered 20 years ago, or even 10 years ago.

    Nope, it might slow down a little but, the train will keep rolling.

  2. As we near the end of State-level legalization, we should push for Federal-level descheduling.
    The current malformed federal definition of marijuana can be reinterpreted by the DEA, the US Attorney General or the President, or its reinterpretation can be used by Congress to legislatively reconstruct the definition in the Controlled Substances Act. It is the obligation of We the People to tell our elected members of Congress how to reconstruct the definition so that it upholds our Constitution, if we know what the necessary and proper reconstruction is.

    The current federal definition of marijuana is malformed in a manner that is consistent with how both previous definitions were malformed. None of the definitions clearly describe how marijuana is actually derived from cannabis. They are each malformed because they consistently adumbrate the single meaning of the racist term “marihuana”, which has the familiar, anglicized, and legally equivalent homonym, “marijuana”.

    Compare the definitions.

    In 1937, rather than prohibit cannabis by an amendment or by name, the Marihuana Tax Act created the original prohibition scheme that relied on its malformed federal definition of the term “marihuana” to surreptitiously prohibit cannabis.

    The Original malformed definition:
    (1937): MARIHUANA: (b) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin- but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

    The abstruse, circumlocutory, and equivocal format of this definition cleverly adumbrated the meaning of the term “marihuana”. It abetted the literal interpretation that misconstrued “marihuana” to mean the cannabis plant. It also aided in the propaganda that invoked “fear itself” to promote the malicious misconceptions about “marihuana” that were featured in “Reefer Madness”, and exist to this day.

    Adumbrate – to outline or sketch.
    Define – to specify distinctly.

    A definition that adumbrates its meaning is an oxymoron, which violates the requirement that federal laws must be “necessary and proper”.

    After that prohibition scheme was ruled unconstitutional in 1969 (but not the definition), a new prohibition scheme was enacted in 1970 that included Schedules. The definition of “marihuana” was updated, and quickly placed in Schedule 1 to again prohibit cannabis.

    The Scheduled malformed definition:
    (1970): (16) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

    (1970): Schedule I. (A) The drug or other substance has a high potential for abuse.

    This definition continued to adumbrate the meaning of the term “marihuana”. It was placed in Schedule 1 to characterize marijuana as a drug, even as it is obviously defined an “other substance”.

    A definition that adumbrates the substance that is classified as an “other substance” still violates the “necessary and proper” requirement.

    The adumbrated meaning was almost revealed when the DEA’s Chief Administrative Law Judge wrote this famous misleading quote in 1988 about marijuana:

    “Marijuana in its natural form, is one of the safest therapeutically active substances known to man.”

    By comparing the quote to the legislated definition, it can be more accurately restated as:

    Marijuana in its natural form is identified as the plant Cannabis sativa L., which is one of the safest therapeutically active plants known to man, while Cannabis sativa L. in its smoked form is known as the substance “marijuana”.

    This reveal of the adumbrated meaning of marijuana was prevented by the strategic agreement, made by the parties in a dispute about rescheduling marijuana, to abide this misconstruction of the definition, which was devised by the DEA judge:

    “Throughout this opinion the term ‘marijuana’ refers to ‘the marijuana plant, considered as a whole’.”

    The result of the DEA judge’s misconstruction is that the Schedule 1 controlled substance “marijuana” is legally misconstrued to mean the plant Cannabis sativa L. This conflicts with the single adumbrated meaning established by the entirety of the legislated federal definition of “marihuana”.

    The DEA judge’s misconstruction was factually wrong, which explains why the judge’s recommendation for rescheduling was overruled. All efforts to reschedule marijuana have failed, because they are premature as long as its definition remains malformed. However, the agreement between the parties to abide the misconstruction of the definition remains in effect.

    The reforms enacted in 2018 by the Farm Bill further malformed the definition of “marihuana” by exempting varieties of cannabis that were misnamed “hemp”. The Farm Bill also exempted THC from “hemp”, and created a clear definition of “hemp” in contrast to the adumbrated definition of “marihuana”.

    The Exempted malformed definition:
    (2018): MARIHUANA: (16)(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
    (B) The term “marihuana” does not include (i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

    (2018): Sec. 297A: (1) HEMP. The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

    Now, included in the meaning of the term “marihuana” is that it is in Schedule 1, it is an “other substance”, and it is not “hemp”. Curiously, “marihuana” is characterized as a drug although it has never included THC in its definition, while “hemp” is not characterized as a drug but it does include THC in its definition. The definition of marijuana is indeed malformed.

    The current malformed federal definition of marijuana can simply be reconstructed to reveal its adumbrated meaning. This necessary and proper reconstruction of the current definition will carefully deschedule cannabis by clearly describing how marijuana is actually derived from cannabis, while implicitly retaining the Schedule 1 status of marijuana itself and explicitly preserving the federal prohibitions that control the undesired proliferation of marijuana:

    The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L. which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is the intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

    We can tell our members of Congress to invoke Section 5 of the 14th Amendment to implement this reconstruction of the definition. This will specifically restore and protect the exclusive privileges and immunities of citizens to grow cannabis that were established in 1868 by Section 1 of the 14th Amendment, 69 years before the Marihuana Tax Act created the original, unnecessary and improper, malformed definition of marijuana that was misconstrued to prohibit cannabis.

    After the reconstructed definition is used to reform the definition in the CSA, then the medical value of carefully descheduled cannabis can be researched by NIDA and augmented with the experience of medical marijuana users. This separate consideration of the adulterated medical value that marijuana derives from cannabis can be used to determine whether to remove marijuana itself from Schedule 1, or from the Schedules entirely.

    By reconstructing the definition to carefully deschedule cannabis this way, the persistent misconstruction that “marihuana = cannabis” will be legislatively overridden, the States will be restrained from maliciously misconstruing federal marijuana law, the Well Regulated Militia Clause of the 2nd Amendment will be positively reinforced, corporations will be obligated to outsource cannabis from citizens competing in the supply-side of the cannabis marketplace, and corporations will be continue to be precluded from enticing children to “smoke marijuana”.

    This reconstructed definition will help to prevent misconstruction or abuse of the Constitution’s powers, extend the ground of public confidence in the Government, and best ensure the beneficent ends of its institution, as well as establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, by adhering to the self-evident truths that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, and that among these are Life, Liberty and the pursuit of Happiness.

    In this election season, let’s tell our members of Congress how to uphold our Constitution by reconstructing the definition of marijuana to reasonably restore and protect our rights regarding cannabis.

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