A question for the armchair constitutionalists.

[rick-day.livejournal.com]

A ruling by a 3 judge panel in CO has tremendous potential impact on the politics of prohibition as well as the upheaval of the entire justice system.

The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug. Lawyers for Coats argued he was protected under a Colorado law that states it is illegal for workers to be terminated for participating in lawful activities off the clock.
But a trial court dismissed the claim in 2011, siding with Dish Network that medical marijuana use isn't a "lawful activity" covered by the termination law.
Now, even though the law has changed, the outcome for Coats has not. In its ruling, the Colorado Court of Appeals sought to define the word "lawful," ultimately concluding that for something to be lawful it "must be permitted by, and not contrary to, both state and federal law."

Oh no they didn't...

Of course, I am not a lawyer, but my opinion is if this ruling were upheld, a state's rights to enact their own Code (of laws) would be nullified if they did not mirror the Federal Code. Because if something is not directly codified as 'illegal' then it is assumed to be legal (please don't make me look up the code for that statute, it does exist).

This means all State laws contrary to Federal law are not "Lawful" laws. So all this abortion stuff from the states; now nullified if this ruling is upheld by SCOTUS? It does not even mention local and county/parish laws.

Working the logic backwards, since the word "both" was used, does this piss not run upstream; that for any federal law contrary to any state law, removes the federal statute's "lawfulness"?

Comments

[fizzyland.livejournal.com]

In California, you can't work for State or City government jobs without being fired for marijuana use, despite it being legal with doctor verification. It's unjustified but much like the twisted interpretation of the Interstate Commerce Act used by the federal DEA to harass legal marijuana in states like CA or Colorado, it seems that judges always side with such moves.

[telemann.livejournal.com]

Employer rights seem to trump worker rights quite a bit.

[rowsdowerisms.livejournal.com]

Dude, your a Civil War late on this one.

[yes-justice.livejournal.com]

The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug.

Seriously? This guy is trying to earn a living. He is in more daily pain than many will ever know. And they fire him for weed from a freaking phone support gig?

Fuck Dish for one thing.

Constitution lovers: Medical marijuana patients cannot own a firearm:
http://blog.sfgate.com/djsaunders/2013/03/26/if-you-own-medical-marijuana-ditch-the-gun/

[badlydrawnjeff.livejournal.com]

This means all State laws contrary to Federal law are not "Lawful" laws. So all this abortion stuff from the states; now nullified if this ruling is upheld by SCOTUS?

Welcome to law by SCOTUS, not law as written.

[rick-day.livejournal.com]

The let the pot smoker carry his own liability insurance.

[rick-day.livejournal.com]

Yeah! I Agree 100%! Fuck em etc...

But what about the ruling?

[dexeron.livejournal.com]

Gonzalez v. Raich unfortunately spelled the doom for the ability for states to legalize something that the Federal Government doesn't like. If they can make a case that it falls under Art 1, Sec 8, they'll assert authority.

[aviv-b.livejournal.com]

I think you are seeing the application of Preemption of State Law under the Supremacy Clause of the Constitution.


A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Article VI, Section 2, of the U.S. Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." This Supremacy Clause has come to mean that the national government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The federal preemption doctrine is a judicial response to the conflict between federal and state legislation. When it is clearly established that a federal law preempts a state law, the state law must be declared invalid.

A state law may be struck down even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Questions in this area require careful Balancing of important state and federal interests. Problems arise when Congress fails to make its purpose explicit, which is often the case. The court must then draw inferences based on the presumed objectives of federal law and the supposed impact of related State Action.

More on specific rulings (health care, environmental regulations, etc.) here: http://legal-dictionary.thefreedictionary.com/Preemption+of+State+and+Local+Laws (http://legal-dictionary.thefreedictionary.com/Preemption+of+State+and+Local+Laws)

[yes-justice.livejournal.com]

Not being an armchair constitutionalist, I didn't answer.

I generally oppose fundamentalisms that prevent people from doing the right thing because of some adherence to a centuries old document.

[yes-justice.livejournal.com]

The dumb and sad thing is that you can be a functional alcoholic, which does actually damage your brain, and everything is hunky dory. But a tiny bit of the evil weed and we freak out.

[enders-shadow.livejournal.com]

laws must be constitutional.

SCOTUS has been deemed to be the body that can demarcate what is and what is not constitutional.
they can also rule in other ways (standing or whatnot) but they DO have the power to declare X or Y to be unconstitutional, and since all no laws may contradict the constitution, i do not understand your objection.

could you expand on it for me?

[badlydrawnjeff.livejournal.com]

It's the "myth of judicial supremacy," which assumes that SCOTUS is basically infalliable as opposed to simply admitting that SCOTUS can get it wrong. We can both accept that current law as interpreted a) is what SCOTUS said and is law as practiced b) while also being against the written word of the Constitution.

[enders-shadow.livejournal.com]

they are not infallible, quite true!

but then again, we arent looking for infallibility, we are looking for legal and while all laws, local state and federal laws, are BOUND to be within the confines of the constitution (or they are illegal laws, and need to be struck down) we need to look to SCOTUS to define constitutional.

let me use an analogy: baseball.

the referees are not infallible, yet, they are empowered to make a decision that others must follow. the guy who calls you being safe or out is not infallible, but, if he is wrong, too fucking bad.

much like i believe SCOTUS was wrong in citizens united (or we can go back to the dredd scott case, for a historical example) that is like me disagreeing with a referee in a sporting arena. too bad, they have the authority to make decisions and that is what they will do.

we can fire the referees or we can change the rules so the referees ruling gets nullified, what we cannot do is simply decide that referees arent referees anymore. a process, established process, needs to be followed.

so yes, states fetal personhood laws are unconstitutional and illegal.

(easy example, i know people who do door to door politicking. certain townships have attempted to require permits and a fee, for door to door electioneering type work (not even fundraising). these townships are violating SCOTUS. the jehovahs took a township to court, made it to SCOTUS and the jehovahs won. many towns still break the law however.)

[badlydrawnjeff.livejournal.com]

but then again, we arent looking for infallibility, we are looking for legal and while all laws, local state and federal laws, are BOUND to be within the confines of the constitution (or they are illegal laws, and need to be struck down) we need to look to SCOTUS to define constitutional.

There are a significant amount of laws that need to be struck down and won't be because of a reliance on a "living constitution" or putting too much stock in precedent or deferring to the legislature.

This is where the problem comes in. Yes, it's law as understood right now - far too many people go along with the "well, SCOTUS said it so we're running with it." It's not something that has a lot of thought.

so yes, states fetal personhood laws are unconstitutional and illegal.

Certainly not according to the Constitution!

[enders-shadow.livejournal.com]

you (and I and all others) cannot ask dead people what they meant, nor can we ask a piece of paper what it means. in order to avoid those fuitless tasks, we have appointed 9 people to speak on behalf of the constitution.

neither you nor I, can say what the constitution means (we can make self-referential statements about how WE interpret it, but our interpretations are mostly irrelevant)

SCOTUS can say what the constitution means--and maybe im wrong, maybe the constitution doesnt bar fetal personhood laws. but you and I cannot say.

only SCOTUS can say; that is their job, their reason for being on the court.

[enders-shadow.livejournal.com]

not only that, but i cant think of any drug, other than pot, that can be detected WEEKS after using.

drug testing primarily fucks stoners; the more dangerous drugs are out of a persons system in days to a week

[badlydrawnjeff.livejournal.com]

you (and I and all others) cannot ask dead people what they meant, nor can we ask a piece of paper what it means.

Seances aren't real, but their actual words that describe exactly what they mean are.

in order to avoid those fuitless tasks, we have appointed 9 people to speak on behalf of the constitution.

Well, they're designed to be a check on the other two branches, a role they've failed at numerous times.

SCOTUS can say what the constitution means--and maybe im wrong, maybe the constitution doesnt bar fetal personhood laws. but you and I cannot say.

only SCOTUS can say; that is their job, their reason for being on the court.

And what you're doing right here is buying into the myth.

[kylinrouge.livejournal.com]

you (and I and all others) cannot ask dead people what they meant, nor can we ask a piece of paper what it means. in order to avoid those fuitless tasks, we have appointed 9 people to speak on behalf of the constitution.

My general opinion on the matter is that we had a document written by slavers who only wanted white, land-owning males of a certain age to vote.

The entire interpretation system is essentially a crutch on the garbled, vague mess we call a Constitution.

We need to rewrite it to bring it more in line with not only other national documents, but more reflective of the time we live in. Even if we rewrote it, 10 or 20 years from now it will still have problems, especially since a lot of people are on the wrong side of history in terms of gay marriage, drug prohibition, etc.

That is not to say that everything in there gets tossed out. No, the legal progress and casework we have made until now will define most of the new document. With a new Constitution, it's possible to quell a lot of issues that, at this point, have no foreseeable end because of the vagueness of the wording that will allow a controversy to live on forever, holding us back and driving this country into third world status.

[kylinrouge.livejournal.com]

I generally oppose fundamentalisms that prevent people from doing the right thing because of some adherence to a centuries old document.

Bingo.

[sandwichwarrior.livejournal.com]

You forget yourself. The US civil war was never about states rights, it was about slavery and showing those ignorant rednecks what for.

;)

[sandwichwarrior.livejournal.com]

Basically this ^

But it does of course raise the question of just how much should the federal government rule on.

[yes-justice.livejournal.com]

True. The common tests will trigger weeks after use.

I guess "never pee in a cup" really is a righteous principle.

[yes-justice.livejournal.com]

Well said. I feel this way about the bible as well. So did Jefferson, but I've digressed.

[rick-day.livejournal.com]

Commerce Clause? Clearly SCOTUS has erased the boundary from any activity other than being dead, and declared all human activity "commerce" therefore regulated by the feds.

Not sure the Founding Fathers saw this as a way to fire ADA employees for metabolites in their urine.

Easy.