From the October 2007 Idaho Observer:

America's other illegal war

On May 19, 1969, Chief Justice EARL WARREN’S Supreme Court sided with drug guru TIMOTHY LEARY to opine that "The Marihuana Tax Act of 1937" constituted double-jeopardy. Suddenly the federal government found itself without any control over the simple possession, much less the marketing of the dreaded evil weed marijuana which the central government had not yet learned to spell correctly.

Less than five months later, the 91st Congress declared" that, "...many of the drugs....have a substantial and direct effect on the public’s health and general welfare [and because they]....flow through interstate or foreign commerce, they have a substantial and direct effect upon interstate commerce."

These "findings and declarations" permitted Congress, constitutionally, to exercise it’s enumerated power, "[t]o regulate Commerce with foreign Nations, and among the several States."

H.R. 18583 was Advertised as a bill, "[t]o improve the administration and regulation of the manufacturing, distribution, and dispensing of controlled substances ( ‘drugs or other substances’ Sec. 102) by providing for a ‘closed’ system of drug distribution for legitimate handlers of such drugs."

Although the nation’s thirst for narcotics and hallucinates is NOT one of the 18 "legitimate" federal concerns, the "[r]egulation of Commerce" certainly is and, if such a "regulation" by Congress serves to; "[s]ignificantly reduce the wide spread diversion" of drugs and narcotics "into the illicit market" as an extraneous result. . . so be it!

The 91st Congress might be able to constitutionally enact a statute that would make it; "Unlawful for any person NOT registered by the Attorney General to possess, manufacture, distribute, or dispense, drugs, narcotics, or hallucinates, in interstate commerce or foreign trade, but such a law, if enacted, does nothing to prevent "drug-pushers" from raising their own pot in the backyard and sellin’ the EVIL weed to our kids. To be precise, "We the People" would STILL have Our "unalienable Rights" to grow and enjoy the "hallucinate" cannabis sativa plant called "POT" just as "We" grow and enjoy our garden grapes "fermented" into the "toxicant" wine or crush apples for hard-cider—so long as "we" don’t move it across State lines or sell it without paying the federal tax.

To solve this "problem," the 91st Congress made the "finding" that drugs, "(m)anufactured or distributed on a purely intrastate basis cannot be differentiated from those manufactured and distributed for interstate commerce. And that, "Federal control over the intrastate traffic in (drugs) is essential to the control over incidents of interstate traffic."

When the 91st Congress added Title II, "Control and Enforcement" to H.R. 18583, Congress advertised that, "The bill provides for control by the Justice Department of problems related to drug abuse through registration of manufacturers, wholesalers, retailers, and all others in the legitimate distribution chain, and makes transactions outside the legitimate distribution chain illegal."

It would be advantageous if Congress were able (constitutionally) to prescribe criminal penal ties for any person NOT registered by the Attorney General to "possess, manufacture, distribute, or dispense drugs or other substances." Such a law or statute would require Congress to exercise its power under the necessary and proper clause, which is constitutionally impossible since that clause only supports "regulations" targeting a "legitimate" federal concern to "regulate commerce" . . . NOT CONDUCT A "WAR on DRUGS."

The "COMPREHENSIVE DRUG ABUSE PREVENTION and CONTROL ACT of 1970" in general, and the OFFENSES and PENALTIES of Title 21, U.S.C. § 841. in particular, ARE -LIMITED, constitutionally and statutorily to; "[t]he registration and control of regulated persons and of regulated transactions." All others are presumed exempt. (21 U.S.C. § 821.)

The controlling federal criminal statute utilized by the government to conduct America’s WAR on DRUGS" and under strict-scrutiny here, is Title 21, United States Code, Section 841, in pertinent part below:

(a) Unlawful acts: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally...(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or...

(b) Penalties: Except as otherwise provided * * * any person who violates subsection (a) of this section shall be sentenced as follows:…

The penal statute above, describes and defines the conduct of those who "[k]nowingly or intentionally" possess, manufacture, distribute, or dispense "a controlled substance" [whatever that is] "except as authorized [some place else in] this subchapter". . . is . . . "unlawful" and then Prescribes "PENALTIES" for the OFFENSE—and that’s all it says.

There is no nexus to the Constitution or the "Commerce Clause" in statute § 841 for federal jurisdiction over "any person." Instead, the nature of the OFFENSE references conduct in violation of authority [some place else in] this subchapter" in pertinent part below:

Figure I: § 822(b) Authorized activities: "Persons registered by the Attorney General under this subchapter***are authorized to possess, manufacture, distribute, or dispense, [controlled substances] to the extent authorized by their registration..."

The United States Supreme Court and ALL United States inferior courts have advertised the truncated version of Section 841 of Title 21 (Figure I) to the Grand Jury, to the defendant, to the petite jury, and the general public that the statute, § 841(a)(1), makes it, "[u]nlawful for any person to knowingly or intentionally possess, manufacture, distribute, or dispense, a controlled substance…,"

Obviously, it’s not a "crime" to distribute "a controlled substance" or there wouldn’t be any need to STOP at the neighborhood drug store to pick-up the miracle drugs the family physician "unlawfully" prescribed because the pharmacist (and the prescribing physician) would already be in federal prison.

The Controlling statute § 841 utilized by the government of the United States to conduct it’s world wide "WAR on DRUGS" is NOT an AC/DC statute that operates in one way, depending on the circumstances, to make it "unlawful for ‘any person’" registered by the Attorney General to possess, manufacture, distribute, or dispense, "controlled substances" in a manner not authorized by their registration, (§ 822 [b]) and on the other hand, depending on the circumstance, to make it "unlawful for ‘any person’" not registered by the Attorney General to possess, manufacture, distribute, or dispense, "controlled substances" . . . whatever they are!

The OFFENSES and PENALTIES in the statute § 841, describe, define, and set forth punishment for "any person" who "knowingly or intentionally" would possess, manufacture, distribute, or dispense, "controlled substances" in violation of an agreement for federal jurisdiction to be federally’ regulated.

A "violation" of § 841(a)(1) is NOT an OFFENSE against the statute § 841, or the "[l]aws of the United States". . . it is A MATERIAL BREACH OF CONTRACT by "any person" who applied, was approved, PAID the required fee, and signed a contract with the Attorney General for federal jurisdiction and federal regulation in the closed, commercial system of "controlled substances". . .whatever they are. . . Plain and Simple!

Note: The full length, 3,000-word version of this landmark essay, complete with citations and analyses of principles of statutory construction, will be posted to The IO website, under the Razorwire section of the Oct., 2007 update. Send SASE and $2 for a hardcopy.