Legal Training, Legal Mind

When I was in law school, professors always extolled the virtues of “thinking like a lawyer.” What they meant by that, in the abstract, was that one develops the capacity to be able to argue either side of an issue. As part of a mere academic exercise, designed to prepare one to operate in an adversarial system, supposedly we need people who, given sufficient facility with the rules of evidence, law, and so forth, can act as advocates for others. But in a practical and real world sense, the idea of “thinking like a lawyer” is usually about dogma and unthinking – sheer obedience.

A brilliant legal mind is not one of rigor – instead it is one fully trained in double-think. Double-think is not just some fantasy of Orwell, but a process that occurs everyday within the Kafka-like world of American courts. Like any altar boy who can tell you that God changed his mind about eating meat on Fridays, or sex lives of priests, or a Mormon who knows that God has seen the light so NOW those children of Cain (you know, they have that dark skin so they can be more easily identified as children of the first murderer), may enter the temple in Salt Lake – but they still cannot head the church, a good law student, and consequently the best federal judges, tolerate and ignore contradictions that do not serve the master (either the professor, the President or Congress).

Joys and Ills of Dogma

One day in my Constitutional law class (on civil rights and liberties), the topic of abortion came up. One student said something like, “since when can judges invent rights?” Given my limited knowledge about the history of the Constitution and its annotations called the Federalist Papers, though I believe that abortion should be legal and accessible, I found myself agreeing with the criticism. Similarly, when I read cases about poll taxes, I thought, “if the state is providing a service, what is the matter with imposing a tax to pay for the service?”

The answer to both questions was basically the same. Our highly respected and oft cited professor said, well at least five justices think that abortion and free [sic] voting, are part of “ordered liberty” or “fundamental rights,” blah, blah, blah. When I asked if there were anyway to determine what other type of human behavior fits into this category of fundamental rights, or how we might recognize what type of governmental action infringes upon ordered liberty, I was told, in effect: “sit down and shut up – that is the rule, just remember it!”

Through the teachings of my professors and via their evaluations of my papers and tests, I learned that in American jurisprudence, especially Constitutional law in the area in what I now call civil liberties, there is little pattern, but a lot of dogma. While I was flustered, my classmates who were very good at being obedient – usually the church-going crowd – had no problem ignoring contradictions or the inconsistency of judicial opinions.

Still Reading the Constitution Upside Down

It would be another year until I was turned on to Federalist #84, whereby I came to understand that American jurisprudence about civil rights and liberties has developed in a manner that completely contradicts both the plain meaning of the Constitution and the desires of the men who drafted and adopted our most fundamental source of law. While all the textbooks used in American law schools talk about what individuals can or cannot do, and emphasize the justifications for same-sex marriage, physician assisted suicide, or immigrant rights to remain in the country, the focus should be on what powers are granted to the government.

Unlike other European nations of the time, where the people accepted and the monarchs presumed that they somehow were God’s choice to lead the Danes, Spanish, English, etc., the drafters of the Constitution declared both that the people of the United States were sovereign and that any and all powers granted to the federal government, were only bequeathed via the rational and explicit intent of the people – as represented via the States and their respective state legislatures. Hence, the primary thought or recognition about the powers and rights of the federal government is that the federal government only has those powers that are explicitly named in the Constitution. Read Federalist #84 again. Hamilton specifically says that there is no need for a bill of rights because such will encourage people to think that the list is exhaustive – i.e. “if it ain’t written down, you can’t do it.” As Hamilton intended, the rule is the converse: “if the Constitution does not grant the federal government said authority, it cannot do it.”

The question about how to interpret the meaning of the Constitution is particularly relevant in the area of civil liberties. For example, when it comes to the question of a woman’s freedom to control her body, there are no provisions in the Constitution that explicitly declare that the federal government can try to prevent abortions or punish one for electing to terminate a pregnancy – by any means. Similarly, the federal government is not granted any power to deny one from using their choice of medicine in treating a medical condition.

To return to the questions of my classmates, the question should have been, “where does it say that government can restrict voting?” Or abortion, group marriage, etc. The Supreme Court did not need to create a “right to abortion” in Roe v. Wade (even though that is what the court said), rather, in concert with the way that the Constitution was written and in the spirit of limited government, the Court only had to announce that reproduction, as a liberty, is not subject to regulation by the government (either State or Federal). Reproduction is a liberty.

Why do I harp on the point? How is this discussion significant today? My argument is that just as reproduction is essential to life, and the individual choice is private and part of one’s liberty, similarly, treating one’s illness, i.e. trying to live, is also a liberty. That means that as written, the Constitution grants no power to either the federal or state governments to restrict one's decisions to ingest a medicine, herb, or drug.

Raich and Backwards Thinking

The case of Angel Raich has been years long. Already going through the federal courts all the way to the U.S. Supreme Court twice, in 2001, 2004, and now ready to return, Ms. Raich and others in her stead were told, once again, that the Constitution does not allow one to use marijuana period, and there is no Constitutional language that permits any one to use marijuana due to a medical necessity. Such was the ruling of the Ninth Circuit Court of Appeals. Though oft decried as a liberal court, a majority here, sided with Imperial and Monarchical power – what we call being conservative and on the right. In deferring, obediently, to a previous ruling of the U.S. Supreme Court, and hence the Bush administration and others before, who since 1937 have said, without any evidence, that marijuana has no medical applications (though it does), this court once again affirmed the notion that government can declare a plant delicto per se – a crime in an of itself.

Angel Raich suffers from having an inoperable brain tumor, chronic nausea, scoliosis, and other ailments. Rather than buy pot on the black market, she joined with others in California who, under California law, formed cannabis clubs strictly for the purpose of using marijuana for medicinal purposes. Instead of being protected by the law, Raich and others have been hounded, jailed, and even killed by the federal government (and those state and local police working in league under the name of a Drug Task Force), via inane and backwards legal reasoning.

Stuck with pre-18th Century Thinking and or Gladly Serving the Emperor?

Recall the ideas of Federalist #84 and how the Constitution is supposed to be read, and then look at the language of the opinion of Federal Appeals Court Judge, Harry Pregerson. Pregerson’s opinion followed the arguments of federal prosecutors who said that: “there’s no constitutionally protected fundamental right to obtain and use marijuana in defiance of the federal ban on [marijuana] (see 21 §§ USC 841(a), 844(a)), and that the Supreme Court decision in the Oakland Cannabis Buyers Cooperative case of 2001 already had ruled out a medical-necessity argument. So in the majority opinion he wrote:

“[there is no] right to use medical marijuana [for such is not] fundamental and implicit in the concept of ordered liberty.”

“Nothing in the common law or [federal] cases suggests that the existence of a necessity defense empowers [federal courts] to enjoin the [executive branch from enforcing] the Controlled Substances Act as [it is applied to Ms. Raich].”

All I can say is, “of course.” Of course the Constitution does not imply using marijuana for any purpose, is fundamental and or implicit within the concept of ordered liberty. The idea of ordered liberty highlights the power of the state to impose order – not of people to live free, respecting the property of others and the commons, but enjoying autonomy over the choice to worship, associate, share ideas, speak to one’s children in any language, and use drugs. The government does not need anyone to use marijuana, nor does the government need people to alleviate pain that the state might impose order. Of course there is no language in the Constitution about common law or individual claims for a medical necessity defense – that is not how or why the Constitution was written.

To review, in 2001, Clarence Thomas, writing for the majority, said that the Constitution does not grant a defense of medical necessity to shield one from prosecution for marijuana possession. In 2005, in a vote of 6-3 (ironically Thomas joining the dissent), the court held that the Congressional ban on homegrown marijuana was authorized by the Constitution because if people could grow their own, the price of black market weed would lower, and increase the likelihood that others could buy marijuana. (Note the parallel, as prostitution is banned, consensual, non-commercial sex can be criminalized, because the more often that people have sex for free – especially if they are married, the lower the price that prostitutes will charge).

But nowhere in these cases did the courts start with the question demanded by Alexander Hamilton, and the question that my law professor should have known, “does the Constitution explicitly authorize the government to deny said individual activity?” If we pose the questions this way, the answer is obvious – Congress cannot authorize and the executive cannot enforce bans on marijuana use, especially when used as a medicinal aid to improve one’s life. What is the purpose of government but to improve the quality of our lives? Thus Pregerson’s determination that nothing allows the court to enjoin the feds from harassing and arresting people like Raich is WRONG. Courts can always declare laws and or their enforcement as unconstitutional and issue a cease and desist order. What he is really saying is that he does not want to do so. After all, it is hard to advance in government if you are not a kiss up, just ask former federal prosecutor Carol Lam or Alberto Gonzalez.

Turning the Legal World Right Side Up

Karl Marx (a materialist) declared that he took the ideas of Hegel (the idealist) and turned them right side-up. Marx believed that one’s material existence informs our ideas about right and wrong, thoughts on physics, religion, the value of labor and so forth. When we look at the state of American jurisprudence, for nearly 200 years, the legal community has ignored the material reality of the Constitution and the Federalist papers, but instead pushed false ideals. So we need a revolution in American legal thinking. We must retrain law students, professors, lawyers and judges to read the Constitution right side up and acknowledge that our government is supposed to be that of a sovereign people, coupled with a government of express and limited powers. In application, this means that there is no grant for the government to punish people like Angel Raich – they cannot take her stash, arrest her, issue fines or keep her in prison. It even means that all laws banning adults from possessing or growing marijuana are unconstitutional as well.

John Calvin Jones has a law degree and a PhD in Political Science. He can be contacted at www.virtualcitizens.com.