CRONY CAPITALISM: Hemp is cannabis is marijuana… Why?
As some of you know I am running for representative in Washington’s Congressional District 1. I was asked by a constituent to explain my position on cannabis. I did so and posted it online.
I stated that I believed hemp aka cannabis had been inappropriately criminalized by our nation’s system of crony capitalism in order to benefit the cotton/fiber industry and DuPont’s then new petroleum-plastics industry.
Someone commented “this person thinks hemp is cannabis.”
I smiled inside because how that came to be true for legal purposes is something all libertarians should contemplate when we think about what a “free market” which will sustain liberty will look like.
The person who made the comment apparently didn’t know that industrial hemp and cannabis come from the same plant, see Wikipedia or that the Controlled Substances Act defines the term “marihuana” to mean:
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.
I don’t think the person, who I think was a Libertarian, appreciated that this plant was criminalized to benefit one set of industries at the expense of another. That is why federal law outlaws growing this plant, regardless of whether it is medical or recreational cannabis or just plain industrial hemp.
Indeed, even in Washington State industrial hemp remained illegal even after medicinal and recreational cannabis was legalized.
The primary reason the plant “Cannabis sativa” (which had been grown in this country as an agricultural product since before the American Revolution) was made illegal was not so much because of the “reefer madness” hysteria the press played up, but because crony capitalists saw a way they could could benefit themselves by getting Congress to outlaw the growing of this plant entirely.
The fiber industry did not want hemp textiles competing with cotton. DuPont, which had then just developed petroleum based plastics lobbied to have hemp outlawed so hemp polymers would not compete with the new plastics industry it was creating.
These businesses did not care about people getting “high” they just wanted to eliminate the competition and got a willing Congress to pass a really bad law.
Had the cannabis sativa plant not been outlawed for decades who knows what medical breakthroughs would have been made by now. If plastics had been required to compete with hemp based biodegradable materials maybe our environment would not be so polluted with a material that just won’t go away.
For those of you who might enjoy some of the absurd legal cases resulting from Congress abuse of power in criminalizing this plant I suggest you read these three Court of Appeals cases interpreting the Controlled Substances Act: Hemp Industries Assoc. v. DEA, 333 F.3d 1082 (9th Cir. 2003) (known as “Hemp I”); Hemp Indus. Ass’n v. DEA, 357 F.3d 1012 (9th Cir. Cal. 2004) (known as “Hemp II”); Monson v. DEA, 589 F.3d 952 (8th Cir. N.D. 2009). The Hemp 1 and 2 cases require all non-psychoactive hemp products to be imported from overseas in order to avoid violating the Controlled Substance Act. The Monson case prevents farmers from growing industrial hemp because Congress intent was to prevent any Cannabis sativa L containing containing any psychoactive ingredients, including industrial hemp, from being grown in the United States.
Medical marijuana issues were the focus of the Supreme Court’s decision in Gonzales v. Raich, 545 US 1 (2005) In that case the Supreme Court upheld the provisions of the Controlled Substance Act against claims by California patients in California that they had constitutional right to grow their own marijuana in California to treat serious medical conditions. The Court’s decision that the Commerce Clause provided an appropriate basis for the regulation was no surprise; but it was a narrow ruling.
The Ninth Circuit’s decision following the Supreme Court’s reversal of its earlier Raich opinion allowing medical cannabis, considered broader issues relating to the whether the Controlled Substance Act could constitutionally prevent sick persons access to marijuana as medicine.
In that case, Raich v. Gonzales, 500 F. 3d 850 (9th Cir. 2007) , the Court of Appeals performed a substantive due process analysis, which is worth considering today. In that opinion the Ninth Circuit observed that in 2007 it was not ready to hold a citizens right to cannabis treatment was protected by the Constitution.
D. Whether the Asserted Right is “Deeply Rooted in This Nation’s History and Tradition” and “Implicit in the Concept of Ordered Liberty”
We turn to whether the asserted right is “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21.
It is beyond dispute that marijuana has a long history of use — medically and otherwise — in this country. Marijuana was not regulated under federal law until Congress passed the Marihuana Tax Act of 1937, Pub. L. No. 75-348, 50 Stat. 551 (repealed 1970), and marijuana was not prohibited under federal law until Congress passed the Controlled Substances Act in 1970. See Gonzales v. Raich, 125 S. Ct. at 2202. There is considerable evidence that efforts to regulate marijuana use in the early-twentieth century targeted recreational use, but permitted medical use. See Richard J. Bonnie & Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va. L. Rev. 971, 1010, 1027, 1167 (1970) (noting that all twenty-two states that had prohibited marijuana by the 1930s created exceptions for medical purposes). By 1965, although possession of marijuana was a crime in all fifty states, almost all states had created exceptions for “persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person.” Leary v. United States, 395 U.S. 6, 16-17, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).
The history of medical marijuana use in this country took an about-face with the passage of the Controlled Substances Act in 1970. Congress placed marijuana on Schedule I of the Controlled Substances Act, taking it outside of the realm of all uses, including medical, under federal law. As the Supreme Court notedin Gonzales v. Raich, 125 S. Ct. at 2199, no state permitted [**36] medical marijuana usage until California’s Compassionate Use Act of 1996. Thus, from 1970 to 1996, the possession or use of marijuana — medically or otherwise — was proscribed under state and federal law.
Raich argues that the last ten years have been characterized by an emerging awareness of marijuana’s medical value. She contends that the rising number of states that have passed laws that permit medical use of marijuana or recognize its therapeutic value is additional evidence that the right is fundamental. Raich avers that the asserted right in this case should be protected on the “emerging awareness” model that the Supreme Court used in Lawrence v. Texas, 539 U.S. at 571.
The Lawrence Court noted that, when the Court had decided Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), “[twenty-four] States and the District of Columbia had sodomy laws.” Lawrence, 539 U.S. at 572. By the time a similar challenge to sodomy laws arose in Lawrence in 2004, only thirteen states had maintained their sodomy laws, and there was a noted “pattern of nonenforcement.” Id. at 573. The Court observed that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Id. at 579.
Though the Lawrence framework might certainly apply to the instant case, the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence. Since 1996, ten states other than California have passed laws decriminalizing in varying degrees the use, possession, manufacture, and distribution of marijuana for the seriously ill. See Alaska Stat. § 11.71.090; Colo. Rev. Stat. § 18-18-406.3; Haw. Rev. Stat. § 329-125 [**38] ; Me. Rev. Stat. Ann. tit. 22, § 2383-B; [*866] Mont. Code Ann. § 50-46-201; Nev. Rev. Stat. § 453A.200; Or. Rev. Stat. § 475.319; R.I. Gen. Laws § 21-28.6-4; Vt. Stat. Ann. tit. 18, § 4474b; Wash. Rev. Code § 69.51A.040. Other states have passed resolutions recognizing that marijuana may have therapeutic value, and yet others have permitted limited use through closely monitored experimental treatment programs. 15
Arguably medical marijuana may have reached the point in 2016 where the same “substantive due process” as compelled recognition gay marriage may compel allowing patients to use medical marijuana. But the same may not be true for industrial hemp because less states may have legalized it.
That is why when I comment on cannabis, I also include industrial hemp because it was also made illegal by the Controlled Substances Act overreach which was enacted to favor the plastics and cotton industries.
So if you are interested in position regarding government regulation of hemp aka cannabis, you can find it here.
CRONY CAPITALISM: Hemp is cannabis is marijuana… Why?
Now you know.