U.S. v. Kalash - Drug Law Constitutionality and Other Unconventional Defenses

[Kalash]

The meaning of the Constitution is explained and applied by cases. Vague terms such as "due process" and so forth receive clarification. Caselaw is, like it or not, law.

If you can find a prohibition in the Constitution, or recognition of some fundamental property right, that would render the CSA unconstitutional, then name it.



That's not all Raich upheld. Raich upheld the constitutionality of the CSA even as applied to medical marijuana. Specifically, the Court said:

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.

Then Congress's ability to regulate is absolute, and any right afflicted by such regulation is moot - denied - and rendered invalid under a regulatory scheme, so long as Congress can create a "rational basis" for regulating that thing?

The court is wrong here - and it is in conflict with U.S. v. Schick.
Note also that removal from the market is for "failure to comply with regulatory requirements" - and the CSA requires that the items simply be removed AS the regulation. Can the "regulation" amount to the punishment for failure to comply with the regulatory measures themselves?
A step is being skipped here... And I maintain that step is procedural due process.

I've quoted earlier cases stating the criteria under which the Court determines the constitutionality of regulations of property under the Commerce Clause. Those cases remain good law today. Those cases foreclose any argument that the property right you claim to exist, does in fact exist. The courts have long held, with the aberration of the Lochner era, that it does not. Without a recognition of that right, your argument that the CSA is unconstitutional does not stand.

Moreover, note that when Raich attempted to argue before the 9th Circuit that the CSA was a violation of substantive due process, in that it denied her the right to preserve her health and life by the use of medical marijuana, she was denied.

Use of medical marijuana is not a RIGHT - it is a PRIVILEGE issued by "medical license" by a controlling authority. The court was correct - as the Fed. Govt. retains control over Marijuana that no license allowing the "privilege" of use/possession of medical marijuana by any party other than the Fed. Govt. can exclude one from prosecution under the Federal Law.
Growing, possessing, and using marijuana for any purpose one decides - so long as it does not inflict injury upon the rights of another IS a right which Government, under the Constitution, cannot take away - and this is not what was being decided, nor challenged. No "right" was raised in contention to the law preventing a ruling on its constitutionality when held up to those rights.

I don't recognize any authority to control that supersedes the rights of the people.
Government doesn't recognize any "right" I may possess which it cannot control absolutely - even to the point of deprivation of that right, without crime, without prosecution, and without procedural due process.

It's semantic - assuredly - but it is fundamental in nature, and simplistic.
If a right cannot be criminalized and converted into a crime - or licensed back to the people - any regulatory scheme claiming to do so is invalid. (Shuttlesworth v. Birmingham, Shick v. U.S.)
Asserting the RIGHT created by a licensing scheme is also to be held invalid, as no RIGHT can be created by license.
Operating under a license - and proclaiming that the "State issued license" grants you certain "rights" is fallacious on numerous levels, and the court is correct in this ruling...
But the ruling does not uphold the Constitutionality of the act itself - not entirely, only its enactment under the Interstate Commerce Clause as a means of regulating commerce.
The challenge of the rights of personal property ownership against the CSA have not been raised, nor is property the only right inflicted with mortal wounds;
The attack upon the statute has not been raised where the rights of an individual - to include liberty; free choice in the market place, personal risks and benefits to be undertaken, property; created and owned, used, without the claim of licensed protection from a non-controlling agency (Supremacy clause - Fed. Control overrides State License.), and pursuit of happiness; to determine for one's self that which makes him happy, and to pursue it so long as he does not come in conflict with the rights of another...

Can Congress, by mandate, create "RIGHTS OF GOVERNMENT" (to control commerce - and all items within it, depriving any owner of any right to that good, seizing those rights for absolute Governmental control, criminalizing the engagement in rights by the property owners) which can be violated as though they were "Rights of a Sovereign"?
I find this concept ludicrous.
Government has no rights - and it cannot be the victim of an act which brings harm to no other (without their consent).
The hypothetical harms alleged are tantamount to a claim that in order to prevent "crime" we must use armed, deadly force to control the property of our neighbors, lest we be tempted to possess their property and not be able to constrain our desires.

There is no rational basis for such a claim, and there is no review of Governmental policy that can create superiority of a granted power of Government over the rights of the people.

Through the enactment of the CSA, Congress refused to recognize any right to property in this nation (Per policy on law making per Senate Resolution 63 - http://www.ripit4me.org/Subjects/MoneyBanking/History/SenateDoc43.pdf - See page 13, the first paragraph) - and the District judge told me as much.
If Government can legislate away the rights of the people, we are not living under a legitimate government, and any law passed by an illegitimate government is not valid law.
This contention that all property is held by the state - and that all "ownership" of property is at the privilege of the state is entirely unconstitutional - and any law based upon such premise is, regardless of case law supporting it, unconstitutional in every manner conceivable.

A person taking another's wallet recognizes no right of their victim to possess that wallet.
A government taking another's property recognizes no right of their victim to possess that property.
There is no difference here except for scope - Government is beyond justice, as it proclaims that it IS justice itself.
But crime remains crime, regardless of the number that defend it.

No right can be created under the Constitution which allows one to control the property of another without their consent, especially when that control is to be held by the limited Federal Government that expressly has no rights at all, and cannot be the victim of any crime, as a crime cannot exist without a trespass upon another's rights.

The irrationality of separation between criminal and civil law - where criminal law requires no victim, while civil law retains that requirement is beyond my ability to express.
That one can be denied his life, liberty, or property for committing an act that does not even hold him civilly liable to another for an injury done to him is so far beyond my ability to reason that I cannot accept your claim that the Judiciary can simply enable Government to make these changes without altering the Rule of Law itself.


If the Constitution is, as it claims, a document equal to that of a "Power of Attorney" document - whereby the RIGHTS of the people are taken, and certain privileged executions in the name of the people's rights may be undertaken by a central agency, in a good faith representation of "The People" - it remains impossible, under Contract Law, for Government to engage in any power - originating from that Power of Attorney document - which is in excess of the rights of the people creating those powers.
I have no right to control your property for any reason, nor do I have a right to deprive you of your control over your property unless I challenge your use in a civil suit and it is deemed that your possession or use is destructive to my rights.

When it comes to property, government may serve as a mediator - nothing more - under the Constitution. It is a 3rd party without stake in the outcome of the proceedings. LAW created under the Constitution cannot make Government the primary party of interest in all cases regarding property, nor can any act passed under the authorities CREATED in the Constitution.
When regulation usurps control over property, seizes property without due process for the benefit of "the people" - Government acts criminally.
Should I decide to control your property for the benefit of "my family" my seizing of that control remains a crime.
Government, acting in the interests of the people, cannot impinge upon the rights of any person in this nation.
That which is crime if I do it to you, remains crime if I do it through manipulation of the Public Servants.

Even if the courts fail to see this, it remains true.
Prevailing law does not mean "good law" - it only means what is widely accepted. Theft is more widely accepted than local regulation, and it remains the prevailing crime.
Victims of crime cannot be held accountable for criminal acts, nor disobedience of orders of those committing crimes against them.

Rationalizations of crime by those in Government do not interest me. The facts, as stated, show clearly that Government is denying property to owners under a regulatory statute and use of robbery and extortion under color of law. (Title 18 Chapter 95 Section 1951)
The further victimization of those suffering under the law is another crime compounding their initial offense. Title 18 Chapter 13 Sections 241 and 242).

No right needs to be asserted in defense of an act for which there are no victims, when the person attempting to defend them self is defending against criminal interference in their life.


Maybe that's an over simplification.
Maybe we no longer live with Equal Protection Under, nor under the Rule of Law.
If that's the case, then there's nothing I can do to protect any right of any person in this nation.
If that's not the case, I have to continue - in pursuit of liberty, not for myself, but for us all. (And I don't just mean drug users - I mean EVERYONE in general).

 

[Heuristic]

Then Congress's ability to regulate is absolute, and any right afflicted by such regulation is moot - denied - and rendered invalid under a regulatory scheme, so long as Congress can create a "rational basis" for regulating that thing?

If the regulation infringes upon a fundamental right, then it is subject to a more strict form of scrutiny, which is far more difficult to pass. The problem for the argument with respect to controlled substances is that the courts do not recognize any fundamental right to possess controlled substances.

The bar for getting something previously unrecognized as a fundamental right, newly recognized as a fundamental right, protected by the due process clause, is quite high.

I don't recognize any authority to control that supersedes the rights of the people.
Government doesn't recognize any "right" I may possess which it cannot control absolutely - even to the point of deprivation of that right, without crime, without prosecution, and without procedural due process.

The American people have always allowed government to regulate property, though, even in the time preceding the Constitution; and certainly in the days after.

The attack upon the statute has not been raised where the rights of an individual - to include liberty; free choice in the market place, personal risks and benefits to be undertaken, property; created and owned, used, without the claim of licensed protection from a non-controlling agency (Supremacy clause - Fed. Control overrides State License.), and pursuit of happiness; to determine for one's self that which makes him happy, and to pursue it so long as he does not come in conflict with the rights of another...

Well, again, I would urge you to look at Raich's attempt to raise a similar argument before the 9th Circuit, arguing that the CSA infringes upon her fundamental liberty to control medical care.

But the reason that Raich's lawyers didn't raise such an issue before the Supreme Court is that there is simply no support for such an argument in law. The ability of the government to regulate, and prohibit, various forms of property in this country is long-standing.

We do not live in a libertarian country. The Constitution was not designed with a libertarian concept of government in mind.

The hypothetical harms alleged are tantamount to a claim that in order to prevent "crime" we must use armed, deadly force to control the property of our neighbors, lest we be tempted to possess their property and not be able to constrain our desires.

I don't find the harms that result from the use of various controlled substances, including MDMA, to be the least bit hypothetical.

This contention that all property is held by the state - and that all "ownership" of property is at the privilege of the state is entirely unconstitutional - and any law based upon such premise is, regardless of case law supporting it, unconstitutional in every manner conceivable.

The contention is that property may be regulated, and forms of it prohibited, by the state---not that the state owns all property.

A person taking another's wallet recognizes no right of their victim to possess that wallet.
A government taking another's property recognizes no right of their victim to possess that property.
There is no difference here except for scope - Government is beyond justice, as it proclaims that it IS justice itself.

Government has the power to make law. Your neighbor, by himself, does not. The government and the individual do not possess an equivalent amount of power with respect to law-making or law-enforcing. Government is the representative of the people; the individual is not.

The irrationality of separation between criminal and civil law - where criminal law requires no victim, while civil law retains that requirement is beyond my ability to express.

Civil lawsuits, again, are designed for the individual to gain compensation for injuries inflicted upon him in violation of his rights.

Criminal law is designed for a very different purpose.

If the Constitution is, as it claims, a document equal to that of a "Power of Attorney" document - whereby the RIGHTS of the people are taken, and certain privileged executions in the name of the people's rights may be undertaken by a central agency, in a good faith representation of "The People" - it remains impossible, under Contract Law, for Government to engage in any power - originating from that Power of Attorney document - which is in excess of the rights of the people creating those powers.
I have no right to control your property for any reason, nor do I have a right to deprive you of your control over your property unless I challenge your use in a civil suit and it is deemed that your possession or use is destructive to my rights.

Your argument here is that if the Constitution authorizes something which you believe it was never the right of the people to authorize, then that Constitutional authorization is not valid.

That's not a legal argument, however. That's a moral argument. And while it's interesting---though I disagree with it---it doesn't carry any legal weight.

When it comes to property, government may serve as a mediator - nothing more - under the Constitution. It is a 3rd party without stake in the outcome of the proceedings. LAW created under the Constitution cannot make Government the primary party of interest in all cases regarding property, nor can any act passed under the authorities CREATED in the Constitution.

This is simply untrue. The Constitution states explicitly that the federal government has an interest in the general welfare of the people, in the promotion of the arts and sciences, and is empowered to regulate interstate commerce, create intellectual property law, tax and spend, etc., for that purpose. So, your vision of government as simply a disinterested third-party in the outcome of private negotiations and exchanges between interested parties is simply not one found in the Constitution.

The Constitution was created during a time when trade was breaking down, when inflation was rampant, when the endeavor of the United States was showing every sign of collapsing. Far from envisioning government as a disinterested third party, the framers understood that government, as an agent of the people, has every interest in regulating property for the benefit of the common good.

That which is crime if I do it to you, remains crime if I do it through manipulation of the Public Servants.

You and the government are not on an equal footing over me. I elect my government officials. I don't elect you.

If that's the case, then there's nothing I can do to protect any right of any person in this nation.
If that's not the case, I have to continue - in pursuit of liberty, not for myself, but for us all. (And I don't just mean drug users - I mean EVERYONE in general).

In pursuit of the liberty to what? Engage in trade of controlled substances? At the moment we are suffering through a recession caused, in part, by a severe lack of government regulation of property. Those of us who DO have health-care have it, for the most part, because our employers are required to provide the option to purchase it. The air we breathe, and the water we drink, are for the most part cleaner than they were 40 years ago because of government regulation of property. And we will need government regulation of property to stop global warming before it advances too far.

We all have ample liberty to pursue happiness in this country. We all have ample property rights. And I do not believe that you will find much sympathy, either in the courts, or among the people, for a radically libertarian conception of property rights.

If you wish to pursue this appeal, then do so as a genuinely legal endeavor. Make your arguments as legally sound as possible.

But then focus on your future. Your real future. You have a lot of options left for a fulfilling career, and life. Do not become consumed by a false crusade to place a libertarian conception of property rights into our law.

 

[Kalash]

Well...
It's getting close to the end of my time here (for now).

I report in Monday (the 6th) to a min. security camp for 21 months of fun and leisure (thank you tax-payers).

Two days ago my new appointed appellate attorney contacted me - and said he was looking over the paperwork in my case...
He'd let me know what he felt were"appeal-able issues" after looking things over.
So - I sent back a simple message asking how a "right" can be converted into a privilege and licensed back to the people - how a "right" can be subject to the control/approval of a higher authority.
I haven't heard back from him - and doubt I will until I've been locked up.


Heuristic - you still contend there are no "legally recognized" rights to property.
I still contend that property rights are inherent in ownership - and cannot be subject to the control of a "higher authority" that grants "permission" to engage in the exercise of a Constitutionally protected (regardless if "THE LAW" recognizes that protection or not) right.

While some restrictions on use can legally be made, deprivation of property through a regulatory "TAKING" remains illegal.
This is the effect of the CSA - a regulatory "TAKING" of property by Government without the requirements of due process nor just compensation.
Restrictions on use and sales are one thing. Criminalizing possession for any reason (without license) is something else.
And we'll see how this plays out in the higher courts.

You keep talking about "Controlled Substances" like they are a fact. This ability to "control" substances is a fiction - it does not exist as an enumerated power in Congress.
There is no "unless we want to" or "unless public will demands" clause in the Constitution that allows for the breach of the 5th Amendment while engaging in the exercise of the privileges enumerated in the articles.

Until such a clause is added, it is impossible for government to refuse to recognize a protected right - regardless of their justification or reasoning.

 

[Kalash]

Final day...
And a few hours...

This is probably the last time I'll be online...

Thanks for the support through all of this. Everyone.
Especially my opponents in this thread
The backstory to all of this can be found on my myspace blog - http://blogs.myspace.com/index.cfm?fuseaction=blog.ListAll&friendId=24814438
Though - that's not so much back story as it is background leading to my beliefs today.
I suppose that amounts to the same thing though.

If you want to write, my BOP register number is 44064-112
http://www.bop.gov/iloc2/InmateFind...LastName=Pohlable&Race=U&Sex=U&Age=&x=48&y=14
(Mods - if you feel it's inappropriate for that to be public, feel free to edit it out.)
If that is edited out - the information necessary to find that number is on the top of every one of my motions.

Until after the appeal - or in just under 2 years...

Be good.
Kalash

 

[Johnny1]

Best of luck to you, Kalash! Looking forward to your quick return.

 

[Heuristic]

Good luck Kalash! You'll be out before Obama even runs for re-election, and hopefully posting about the prospect here.

I enjoyed our discussions, and I look forward to continuing them in the reasonably near future.

 

[AfterGlow]

I wish you all the best. Make good use of your time and don't give up on your cause. It may take quite a while, but I believe you will eventually be vindicated. Prohibition of alcohol failed and prohibition of recreational drugs is doomed to failure as well. Too may people enjoy drugs and the government cannot make criminals out of the majority of its citizens.

 

[a thing]

So long and good luck with the appeal, Kalash. I'll miss your diehard libertarianism in DiTM and CE&P. Writing that book would be a good use of your time in prison.

 

[LuGoJ]

I know you won't be reading this but best of luck.

 

[Kalash]

Prison was awesome!
I learnedhow to play the guitar, read a while lot, and enjoyed the absolute time freedom that comes without having any responsibilities.

Anyway....
Federal prison...
The second chance act gets pretty much everyone at least six months in a halfway house. That's where I an now... Till jan.

 

[Kalash]

Stupid phone.... No computer till after I'm out of the halfway house, so I won't be posting often or much, but I survived, and an more than happy to answer questions.
Oh...and I moved to San Francisco...
If anyone is up here...

~K

 

[Kalash]

Well, that was GREAT! I not only had time to read, but I learned how to play the guitar! (kinda. I do alright.... Http://youtube.com/kallepash )

I'm in san fran in a halfway house, working full time doing computer repair, and I can't have a computer until I'm out of bop custody....the middle of January.
But luckily, I can have a cell phone, and an android device is a phone.... Not a computer, so I'm back. I probably won't post much until jan...assuming I have enough money saved up to move out of the halfway house... If not, they'll be really nice and give me another 6 months of free housing.
All in all, I can't really complain about my situation.

But I can still cuss about the abuses of government.
Thank you taxpayers!
I'm just sorry government didn't give you the choice to refuse to pay for my year long vacation from the stresses of daily life.

 

[Belén]

Hello Kalash! I just sign in here to thank you for your explanation on the "no harm principle". I´m from Argentina and we have the same principle here, in fact, it comes from Roman law, which is the basis for our legal system. Ridiculous theories have been written in order to justify the alleged right of the courts to punish private acts, even when our constitution expressly states that "private actions that do not affect others are strictly reserved to God and out of the scope of courts blabla" (that was my translation). One of these theories is that even when the private action does not affect a legally protected interest, it "ENDANGERS " it. They even made up a legally protected interest, the right to public health, which is supposedly endangered. Luckily, supreme court judges here are more and more for individual freedom and realized what a waste of public resources it is to prosecute in these cases. I hope you didn´t go to jail!! Consider Argentina for your next vacations!
Saludos!

 

[StarOceanHouse]

I think this thread is worthy of saving.

 

[Jabberwocky]

Thanks to a helpful member for reporting this and helping with this final prune of LD

 

[Kalash]

So.... This is still here. Does that mean it will be deleted? If so, when? I'd like to achieve a copy first...

 

[Mariposa]

Kalash, great to see that you're out. If you're still in SF, drop me a note!

StarOceanHouse already bumped this thread and Enki saw the report. I'd also like to see it saved. The smods and admins seem to have it handled.

It would be great to see you wrap up with how it was on the inside before the thread is archived. Again, glad you've got your freedom back.

 

[indelibleface]

Likewise, great to hear that you are doing well, all things considered. :D