Tuesday's election brought little to no change in the make-up of our federal elected officials, but our fellow Coloradans made a controversial statement by legalizing marijuana with the passage of Amendment 64. For those of you just returning from a six-month trip to the moon, Amendment 64 is a change to Article 17 of the Colorado State Constitution that allows adults older than 21 to possess up to one ounce of marijuana (or six marijuana plants) for recreational use. The measure goes one step further and allows commercial sales of the drug starting next year.Despite the language of Amendment 64, the activities permitted therein are in direct contradiction of federal law. Specifically, Title 21 of the United State Code contains the Controlled Substances Act. Passed in 1970, the Controlled Substances Act is the federal drug policy under which the manufacture, importation, possession, use and distribution of certain scheduled drugs are regulated. Just like all current medicinal marijuana users, Colorado citizens who use the drug in accordance with Amendment 64 will knowingly be breaking a federal law.Now that the black and white is explained, let us turn to that most mysterious color of law, grey. According to the 2005 Supreme Court opinion in Gonzales v. Raich, the federal Congress has the authority to pass the Controlled Substances Act by virtue of the "commerce clause" of the U.S. Constitution. In Raich, the court denied a challenge to the Controlled Substances Act and held that the commerce clause allowed the federal government to criminalize the production and use of cannabis even when the state approved the drug for its medicinal use. At first glance this case would seem to indicate that Amendment 64 would not have a chance at survival, but a deeper look at the language in Raich points towards a different outcome. In the past, the Supreme Court has given the federal government broad power to regulate the channels, instrumentalities and agents of interstate commerce. Today's conservative-leaning court, however, is more reluctant to validate federal action under the broad rubric of the commerce clause. In a scathing dissent of the Raich decision, Justice Thomas condemned the further expansion of the commerce clause stating that "if the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states."Clarence Thomas is by no means the only justice that has demonstrated a reluctance to expand the power of the federal government by virtue of broad interpretation of the U.S. Constitution. Many in Colorado will remember the last state constitutional provision brought before the U.S. Supreme Court: The anti-homosexual rights Amendment 2. The amendment was hugely controversial and was eventually struck down by the court in the 1996 case of Romer v. Evans. Romer is analogous to Amendment 64 as it involved a federal constitutional challenge to a Colorado constitutional amendment. In his vigorous dissent of the Romer opinion, Justice Scalia argued that protection of homosexual rights was a cultural debate that gave rise to the Colorado constitutional amendment. Scalia then argued in favor of the determination of Colorado voters stating that, "Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions." Looking at the bigger picture, today's court leans much further to the right than it did in 1996. For that reason, there seems to be a good chance that some of the more conservative justices would agree with the pro-states rights and small government fundamentals presented by Justices Thomas and Scalia. It is hard to imagine Scalia or Thomas being the eventual "saviors" of Amendment 64, but given their prior jurisprudence, a challenge to this amendment might give the majority an opportunity to change federal law. Willie Nelson and Clarence Thomas? Politics makes for strange bedfellows.Michael Brownlee is a partner with Thompson, Brownlee & Voboril LLC, a local civil litigation firm. For more information, contact Brownlee at 970-455-4226 or firstname.lastname@example.org or visit www.thompsonbrownlee.com.
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