August 29, 2006

Not likely to work

California is considering passing a bill legalizing the cultivation of industrial hemp. This would be, in essence, a direct challenge to federal rules prohibiting such cultivation.

Federal law always trumps state law. The states may not allow what the federal government prohibits, nor may they prohibit what the federal government requires. States may grant more protections than the federal government, but not even a state constitution may go against federal statutes, let alone the US Constitution as interpreted by SCOTUS.

The Governator can sign this bill with no political risk. It makes the hippies happy, but will not result in the legalization of industrial hemp. Everybody wins.

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Posted by ryan at August 29, 2006 7:04 AM | TrackBack
Comments

It's more than that - it gets the debate going. When the federal government challenges this law, as it must, the argument will be made not for the benefit of the judge so much as for the interested public. And a law like this will see a lot of interest. Making hemp cultivation illegal was a foolish law to begin with, as we simply deprived ourselves of a very useful natural resource out of fear that it would be abused by pot-heads. I don't support the recreational use of marijuana personally, due to the long-term damage I believe it can cause to brain cells - but I don't think that that reason alone should be sufficient to criminalize its use either recreationally or industrially.

Bravo California.

Posted by: Mason at August 29, 2006 11:11 PM

The reason for outlawing industrial hemp is not that hemp, as such, is abusable. It isn't, at least not easily. The reason is that the plant bears so much superficial resemblance to marijuana that most people will not be able to tell the difference without chemical anaylsis. This means that all any clever pot-heads need do is covertly plant a few pot plants in a hemp field and they'll be pretty much immune to prosecution. As such the feds have outlawed it.

The one thing this case will not do is "get the debate going". Legal arguments are always for the judge (or jury, depending), and if California makes arguments "for the interested public", they may score PR points - and that may be the sole purpose of the bill - but they'll lose the case.

All the feds need to do is demonstrate that this is a usurpation of federal privilege and they automatically win. It doesn't matter if the law is silly: federal law always trumps state law. This is not a question of agriculture. This is question of federalism, and it's one which the courts have long familiarity.

This isn't a principled move to change the war on drugs. It's a publicity stunt.

Posted by: ryan at August 30, 2006 2:40 PM
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