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Marijuana & The Rule of Law

During the last few weeks, there were a few shootings — though this Fresno Bee story mentions four — when people allegedly tried to steal marijuana that did not belong to them, growing on property where they had no permission to be.

Obviously, something had to be done.

And so it was that Fresno County supervisors voted to ban outdoor pot growing. The City of Fresno plans to see if they can follow suit.

Apparently, no one I’ve talked to sees this as ridiculous, except me.

But it’s not just ridiculous. It’s another example of how the Rule of Law in the United States has become passé.

When this once-great nation was founded and for some time after, it was said,

[S]o far as we approve of monarchy…in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.[1]

Brian Tamanaha says, regarding this King, the Rule of Law, “that ‘there are almost as many conceptions of the rule of law as there are people defending it.'”[2] He further notes:

Dissidents point out that authoritarian governments that claim to abide by the rule of law routinely understand this phrase in oppressive terms. As Chinese law professor Li Shuguang put it: “‘Chinese leaders want rule by law, not rule of law’…The difference…is that under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion.”[3]

In his Law as a Means to an End: Threat to the Rule of Law (Law in Context),Tamanaha notes that this is because of the transformation of our view of law. These days:

An instrumental view of law — the idea that law is a means to an end — is taken for granted in the United States, almost a part of the air we breathe.[4]

There is a danger in this instrumental view of law:

In situations of sharp disagreement over the social good, when law is perceived as a powerful instrument, individuals and groups within society will endeavor to seize or co-opt the law in every way possible; to fill in, interpret, manipulate, and utilize the law to serve their own ends. This will spawn a Hobbsean conflict of all against all carried on within and through the legal order. Rather than function to maintain social order and resolve disputes, as Hobbes suggested was the role of law, combatants will fight to control and use the implements of the law as weapons in social, political, religious, and economic disputes. Law will thus generate disputes as much as resolve them. Even when one side prevails, victory will mark only a momentary respite before the battle is resumed.[5]

But “an instrumental view of law has a powerful tendency to corrode the rule of law ideal.”[6]

Once we descend into — or attain, however you wish to view it — a view of the law as a mere instrument to seize or co-opt to your own ends, we’re back where we were before the Law was made King. The Law becomes the servant of whomever has power at the moment.

Nowhere is this more clear right now than in the great battle raging in California over the legalization of marijuana.

First, the People of the State of California, using the power of the initiative, legalize the cultivation, possession, transportation and use of marijuana for medical purposes. Certain local governments — Fresno and Tulare County, where I practice law being among them — wants nothing to do with this.

Screw the will of the People!,” local government leaders shout. “We don’t want no stinking hippie-ass weed-lovers doing whatever they want in ourcounty!” (Make no mistake: it is their county, not ours.)

And so, notwithstanding the voice of the majority, they begin to do everything they can, using the law, to make illegal what the People have deemed and made legal.

Interestingly, there is nothing unconstitutional about passing a law favoring the legalization of medical marijuana. There is something blatantly unconstitutional and discriminatory towards the minority of gay people in making marriage unavailable to homosexuals, lesbians, African-Americans, or others. Yet when a federal judge recently ruled that Proposition 8 was unconstitutional, the crying and gnashing of teeth was extensive. “How does one judge overturn the will of the People!?”

How do the police — or even a Board of Supervisors — overturn the constitutional decision of the People?

In a nation committed to the Rule of Law, this would not happen.

But we do not adhere to the Rule of Law. We abandoned that long ago. Instead, we subscribe to an instrumental view of the law and we fight for control. One group — a majority of the People — says, “Cultivating, possessing, transporting and using marijuana for medical purposes is legal.” Another group says, “No f’ing way! Not in this town!” and does not care that the majority voted otherwise. They will, and do, put up every barrier to the will of the People in that regard.

“Well, wait a minute,” you say. “This is different. They aren’t saying no one can grow marijuana. They’re just saying they can’t grow it in their own yards, because people will come and try to steal it and people will get shot.”

Fair enough. When do we start closing down the banks, convenience and other stores, gas stations, liquor stores (2015 update: link broken), pizzaparlors, and dairies?

Answer: We don’t. Because regardless of what the power structure in Fresno says, it’s not about the robberies, or the shootings. It’s about the pot.

The instrumental view of Law wins over the Rule of Law. Those with the biggest, or most, guns win. In Fresno, that means the will of the voters is a moot point.

But if you think that’s bad, wait until we actually give them the power to regulate and control marijuana “notwithstanding any other law,” like Proposition 215, the Compassionate Use Act.

For more on that possibility, see the following articles I’ve written on Proposition 19:

Oh, and if you live in Fresno, you might want to consider learning Chinese.

  1. Thomas Paine, Common Sense (1776) page unknown. I cannot provide pagination for most of the cites in this post, because I’ve started using eBooks on the Kindle, or reading them on the Internet. Apparently, we no longer think it’s important to be able to provide a citation to pages, as the Kindle for iPad does not allow that functinoality, and many books on the Internet dispense with the pagination, as well.
  2. Tamanaha, On the rule of law: history, politics, theory (2004) 3, quoting Olufemi Taiwo, “The Rule of Law: The New Leviathan?,” 12 Canadian Journal of Law & Jurisprudence (1999) 151, 152.
  3. Tamanaha, supra.
  4. Tamanaha, Law as a Means to an End: threat to the Rule of Law (Law in Context) (2006). Again, I can’t give page numbers since I’m reading it in Kindle for iPad, but this is from the Introduction.
  5. Tamanaha, supra, Law as a Means to an End (emphasis added).
  6. Tamanaha, supra, Law as a Means to an End.