Wash. Effort To Legalize Pot Faces Legal Pitfalls
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Wash. Effort To Legalize Pot Faces Legal Pitfalls
Posted by CN Staff on November 20, 2011 at 12:29:51 PT
By Gene Johnson, The Associated Press
Source: Associated Press 
Seattle, W.A. -- An effort to decriminalize and tax recreational marijuana sales for adults in Washington state has won some high-profile endorsements - including from two former Seattle U.S. attorneys and the former head of the FBI here - and its sponsors are well on their way to collecting enough signatures to place the measure before the Legislature.Supporters say it would boost funding for education and public health, and polls show a slight majority of Washington voters approve.
But Initiative 502 faces serious legal pitfalls. Not only could the federal agents raid and shut down the state-licensed pot grows and retail stores, they could ask a judge to simply throw out the entire system on the grounds that it conflicts with federal law.And that new tax revenue, conservatively estimated at $215 million a year? The feds can almost certainly just take it, as proceeds of drug deals that remain illegal under federal law.Whether the federal government would actually take such steps is anybody's guess - and it's what makes the effort, which is being closely watched by legalization advocates around the country, a gamble."This is an evolving area of the law," says Alison Holcomb, the initiative's campaign director. "We'd be foolhardy to say we think we know what's going to happen."Initiative 502 would create a system of state-licensed growers, processors and stores, and would impose a 25 percent excise tax at each stage. Adults 21 and over could buy up to an ounce of dried marijuana; one pound of marijuana-infused product in solid form, such as brownies; or 72 ounces of marijuana-infused liquids. It would be illegal to drive with more than 5 nanograms of THC, the active ingredient of cannabis, per milliliter of blood.Holcomb's group, New Approach Washington, is pushing the measure at a time of serious upheaval in the marijuana world, with the Obama administration pressuring states and cities that attempt to regulate the medical marijuana industry.Federal prosecutors in California have announced a concerted effort to warn property owners that they could face sanctions if they rent to marijuana grows or dispensaries, and the DOJ has made clear that prosecuting commercial marijuana businesses remains a priority. Rhode Island Gov. Lincoln Chafee announced last month that he was suspending a system to license nonprofit "compassion centers" where people could get medical pot, out of concerns it would violate federal law. And the raids on 19 medical marijuana dispensaries by Drug Enforcement Administration agents and sheriffs' deputies in Western Washington last week served as a wake-up call about how much the feds will tolerate here.At the same time, Washington isn't alone in considering legalizing the fun use of marijuana. Colorado will vote next year if a similar measure there makes the ballot. Supporters say that treating marijuana use as a crime has failed, and now is the time to decriminalize, tax and regulate the drug.Whether states can get away with enacting such systems - whether they can regulate a substance that is illegal under federal law - isn't clear.No one disputes that federal authorities have the power to enforce federal law, and thus could shut down state-licensed marijuana gardens or stores at whim, arresting the proprietors and prosecuting them in federal court.Nor do many dispute that states have the power to decriminalize marijuana under their own laws. That's why states can "legalize" medical marijuana - they simply decide to stop prosecuting people for certain offenses. Federal authorities can't make state officials enforce federal law, and there aren't nearly enough DEA agents or assistant U.S. attorneys to keep up with all the marijuana gardens, dispensaries or patients.The stickier issue is whether states can go beyond simple decriminalization by setting up licensing or other regulatory schemes. In such cases, rather than doing nothing in the face of federal marijuana prohibition - i.e., not prosecuting people under state law - a state would be doing something, and that something could arguably conflict with federal law. When state and federal laws conflict, the federal law wins out; it "preempts" the state law."Can the feds bring a challenge on preemption grounds? Yes. Will they prevail? We don't know," Holcomb says.She says I-502 is drafted as strongly as possible to survive such a challenge. The Controlled Substances Act contains a provision saying that it will only preempt state laws that are in "positive conflict" with it - in other words, if the state law forces someone to violate federal law. I-502 doesn't do that, Holcomb says, because a citizen could comply with both laws by simply not buying, growing or selling marijuana. The licensing scheme simply helps state police determine who is complying with state law, she said.Karl Manheim, a constitutional law professor at Loyola Law School in Los Angeles, said he tended to agree with that analysis, and two recent opinions from state appeals courts in California took the view that states can take some regulatory steps without running afoul of the federal Controlled Substances Act.But another California appeals court ruling last month took the opposite view. It unanimously said that in addition to considering whether a state law forces someone to violate federal law, courts must also look at whether the state law "frustrates the purpose" of federal laws. The court noted that there is some question as to whether state or local officials could be liable for aiding and abetting federal crimes. The court threw out a dispensary licensing scheme in Long Beach on the grounds that it authorized people to engage in conduct at odds with the federal law, and thus frustrated the purpose of the federal law.The Oregon Supreme Court came to the same conclusion last year in determining that that state's medical marijuana law could be preempted by federal law.Under such a rationale, licensing schemes that already exist for medical marijuana distribution - such as in Colorado and New Mexico - would also be subject to federal preemption. But the DOJ has never made any such arguments. Some speculate it's because the distribution was for medical reasons, and trumping such laws would be more unpopular than trumping a scheme for distributing recreational marijuana.In an interview this week, Seattle U.S. Attorney Jenny Durkan declined to discuss whether she believed the Justice Department could preempt I-502."Every lawyer that I have talked to, including those who support the initiative, think that it will be preempted by federal law," Durkan said.Douglas Hiatt, a Seattle medical marijuana attorney and advocate of legalization, agrees. He argues that it requires those who would apply for licenses to incriminate themselves in violation of the Fifth Amendment, that the state would be laundering money when it taxes marijuana transfers, and that the intoxicated driving limit is so strict that it would keep medical marijuana patients from driving at all.If the parts of I-502 he considers unconstitutional were struck down, the result could be that Washington would wind up with possession of up to an ounce of marijuana being decriminalized, with no way to legally buy it, he said.Holcomb disputes his criticism, but concedes the Justice Department almost certainly could seize any taxes collected through a "forfeiture" action - one that requires the disgorgement of proceeds of illegal activity.Ultimately, both Holcomb and Hiatt propose legalization approaches that might be preempted by federal law. Hiatt's group, Sensible Washington, wants to first repeal all state criminal and civil penalties for marijuana in any amount. Having done that, Hiatt argues, marijuana would be totally legal under state law - and the Legislature could then pass regulations governing pot sales.Faced with the choice between no state pot laws and whatever regulation scheme the Legislature comes up with, the DOJ would be less likely to seek to invalidate the Legislature's scheme, Hiatt argues. That's the strategy states used in knocking down the federal prohibition of alcohol in the 1920s and `30s.But Sensible Washington's initiative has twice failed to qualify for the ballot.Holcomb hopes the DOJ will not try to preempt I-502 - that the feds will ultimately consider its licensing and taxing scheme a lesser evil than the "wild West" of full decriminalization.Source: Associated Press (Wire)Author: Gene Johnson, The Associated PressPublished: November 20, 2011Copyright: 2011 The Associated PressCannabisNews  -- Cannabis  Archives
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Comment #37 posted by museman on November 26, 2011 at 08:56:54 PT
Have a good one!
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Comment #36 posted by FoM on November 25, 2011 at 18:13:41 PT
Happy Birthday!!!
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Comment #35 posted by Hope on November 25, 2011 at 13:59:44 PT
Happy Birthday, Afterburner!
Happy, happy, happy!
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Comment #34 posted by ekim on November 25, 2011 at 06:33:24 PT
Happy B Day AB bike video
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Comment #33 posted by afterburner on November 24, 2011 at 09:28:16 PT
Happy Thanksgiving Everyone
My son and I had a small celebration this morning, watching the Macy's Parade from New York. Together we represent both the European immigrants and the native residents. We try to reflect the best of both worlds in our actions and relationships.Because my birthday is coming this weekend, we will have a larger family gathering sometime soon.
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Comment #32 posted by FoM on November 23, 2011 at 18:44:12 PT
I agree and have a wonderful gathering with your family. We are having friends over tomorrow and food galore. We have a lot to be thankful for. We have been sidetracked for years now but soon things will change I believe. 
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Comment #31 posted by museman on November 23, 2011 at 18:30:39 PT
Ultimately the victory is ours. As in any group of warriors -peaceful or not- there are casualties, and though the war against us seems to be escalating, like the tent on the side of the building on wallstreet said "You can't evict an idea whose time has come!" We will persevere, and many of us will see the fall of the false and the rise of the true -in all the ways that that applies.
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Comment #30 posted by museman on November 23, 2011 at 18:12:42 PT
Compromise for the sake of love, good feelings, prosperity, peace, and true progress, is more like a willingness to make personal sacrifice for the greater good, than a tooth grinding capitulation that you know is wrong and shouldn't have to happen with an entity (no matter who is its extension) that will not, and refuses to identify with your humanity.There is a global revolution happening. It has to do with awareness. And one of the things that people are becoming aware of, quite starkly, is the disparity between the ones who rule, and the ones who serve the rulers.It has been this way for so long, the masses have -up to now, or recent past- been almost genetically predisposed to follow the 'orders from headquarters' without question.'Law' is imposed for the absolute purpose of controlling those who do not rule. Those who have been instilled with a strong sense of ethics and a 'moral compass' are easily maneuvered into compliance by the seemingly 'upright' appearance of political celebrity. This is how the best of us have been fooled, over and over again, casting our faith and belief after those whose words inspired, but whose actions belied.But after all that has been said and done, it is all a grand illusion; law and politics, economics and property ownership, -the 'American Dream' (scratching the surface)Fundamental value is apparent only when one stops filling up the space with falsehood, and simply looks at and experiences the abundance and Providence of Creation.All this stuff is in the way, stumbling blocks that we could have discarded centuries ago if not for the perpetual fear machine being run by this same group of power-mongers.When you can stand up in a 'court of law' and have any one single officer of that court state 'for the record' that Love is the highest law, and acknowledge the supremacy of that fact; then, and only then will such a state of affairs be anything other than illusion.Since the game they play is for their benefit, and the benefit of their uber-rich puppeteers, and no 'title' is about anything it is claimed to be, like "Human Services" "Health and Welfare" and blah blah blah, continuing to believe in such nonsense defies common sense.I think people are getting it Hope. I really do.My family is starting to arrive. There are more of them now...than there used to be.Maybe new 'traditions' can be started on these celebratory occasions (not 'HolyDay,' hardly...). Let us all have a good thought for each other, silently between us and the universe, as we celebrate, and 'party' as my good friend runruff puts it.Cannabis Forever 
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Comment #29 posted by Hope on November 23, 2011 at 16:38:51 PT
It's a struggle... and it goes on.
There are those that couldn't be and can't be compromised with, too... as we know all too well.Souder, for one. Others that I can't even remember their names any more. It's a struggle against those kind. Hard core, maniacal, vicious, and powerful prohibitionists.Sam Adams is right. That part of I-502 is really unacceptable.
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Comment #28 posted by Hope on November 23, 2011 at 14:29:43 PT
FoM, Runruff, and Museman.
Runruff, I'm thankful for Parties!I do. I love 'em.You'll all have a good one! A great one! Everyone!
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Comment #27 posted by Hope on November 23, 2011 at 14:22:15 PT
I am not a quick study.It can take forever for some things to finally sink in on me.And that trait may be even worse now.Dense? Yes. Sometimes. Slow on the uptake? Yes. Sometimes. I have long fought a tendency to jump to conclusions. Plus we, as a large, uneven, and scattered reform movement/group, have allowed a lot because of trying to reason with unreasonable people and "half a loaf is better than none" thinking. But they, the prohibitionists and the greedy, and the one's willing to compromise, go too far sometimes. Too far to tolerate, as in this case. Remember the initiative in Nevada years ago? That was to legalize to some degree but it wreaked hell in some areas. Many people that would have voted for it would have if not for those requirements. They were completely unacceptable. The went too far. They compromised intolerably to most people. Compromise often helps a situation, but, depending on the situation, it can be out of line.And... of course, post chemo, even now... it's slipping away what we were talking about.:0)
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Comment #26 posted by FoM on November 23, 2011 at 14:17:32 PT
Museman Comment # 20
I agree. It really makes me sad to see how it is going. It is not at all what I had hoped for.
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Comment #25 posted by FoM on November 23, 2011 at 14:12:33 PT
Me too! 
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Comment #24 posted by Hope on November 23, 2011 at 14:00:40 PT
It's a Party!People getting together. Preparing and enjoying a feast for friends and family. Celebration. Reflection. Love. Hopefully.I love a good party!
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Comment #23 posted by FoM on November 23, 2011 at 13:36:41 PT
What Thanksgiving means to me is nothing about history but it is a time to reflect on this past year and all the blessings that we have received. It's a time to look humbly back and reflect on how fortunate we really are.Happy Thanksgiving Everyone!
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Comment #22 posted by runruff on November 23, 2011 at 13:31:40 PT
Good eating and fellowshpping!
Big heaping helping of both on this day meant for just that. American Indians get together for TG-Day but with different intentions and are thankful for a variety of things not mentioned in the traditional sense. Most Indians I know do not celebrate the 4TH of July. That is American Independence Day. To the Indian the American Citizen has never been independent in any sense of the word, but I may be melting down into semantics here when all I needed to say was;Wish you all a very happy day tomorrow!
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Comment #21 posted by museman on November 23, 2011 at 12:19:28 PT
There is always something to be thankful for. Having any good excuse for gathering the family and friends together is always good.The American tradition is a bit historically slanted though.How many Native Americans (that haven't been completely culturally assimilated) celebrate 'thanksgiving'?There are so many deep layered, subconscious programs that fortify the propaganda of the ruling faction, justify it, and perpetuate servitude to its precepts; like consumerism.Today I have a flock of wild turkeys in my yard. If I wanted, I could probably lasso one and have free (except for the labor of plucking, etc) turkey dinner -and as fresh as can be imagined.But I am not going to kill something for a traditional celebration that is totally slanted towards the white dominant society. (I don't support tree slaying for xmas either)And we do not uphold 'american' tradition in my house, though we will gather, and I look forward to that.But, all that cynicism aside, please, I wish everyone a healthy, fulfilling, satisfying day. Just when you say a prayer -if you do- remember those who do not have such luxury, and then you can really be thankful that you do.Peace
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Comment #20 posted by museman on November 23, 2011 at 11:57:23 PT
"Alarms should be sounding in our heads. This movement is being co-opted by people who want to restrict supply and create monopolies on growing and distribution."All those arguments for compromise and regulation should have thrown flags a while back...I believe I mentioned it a few times...The carpetbaggers are waiting in the wings. Phillip Morris Inc, Monsanto, Big Pharma, and many other 1 percenters with resource to ensure only the sanctioned, wealthy investors have control over the industry, are already worming their way into the supply chain via political puppetry.Compromise with error cannot create correctness.Its an unpleasant fact soon to be realized, I hope.LEGALIZE FREEDOM
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Comment #19 posted by Hope on November 23, 2011 at 11:10:25 PT
Money! Money! Money!
And more Money!*sigh*
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Comment #18 posted by Hope on November 23, 2011 at 11:04:21 PT
Sam Adams
I don't think I've thought about that before now, but, I think you may be right."Alarms should be sounding in our heads. This movement is being co-opted by people who want to restrict supply and create monopolies on growing and distribution."
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Comment #17 posted by Hope on November 23, 2011 at 11:01:34 PT
Don't you dare apologize, Dear Sam.
You just keep on doing what you do so well. Shining light on the subject at hand.Some days I don't have enough active brain cells to join the conversation, but I'm always listening and interested.
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Comment #16 posted by Sam Adams on November 23, 2011 at 10:19:36 PT
I-502 does not allowing home growing!!!
Sorry to intrude, but this initiative is horrible. This is not legalization, it's not even decrim. Cannabis reform activists need to wake up. The people that are funding this "movement" have shifted priorities in the last couple of years.The 2010 Arizona and 2012 Massachusetts medical MJ referendums do not guarantee the right of home growing to sick people, in fact these "reforms" maintain criminal penalties for growing and add new ones for other MJ "offenses".Now this "legalization" referendum in WA, apparently funded by the same guy, taxes cannabis at levels approaching 100% and does not allow home growing - even with cannabis being "legal"?The Colorado "legalization" initiative says no one can posess more than ONE OUNCE, even the sick and dying? Alarms should be sounding in our heads. This movement is being co-opted by people who want to restrict supply and create monopolies on growing and distribution.
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Comment #15 posted by Hope on November 23, 2011 at 09:26:33 PT
Have a blessed and safe Thanksgiving, everyone!
We have some things to be thankful for, I know. It's just when I go to the "Thinking place"... it's like a well and I don't have a bucket. I left it back in a chemo lab. But I know we do... and I'm thankful for that.:0)Have a great day!
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Comment #14 posted by FoM on November 23, 2011 at 06:00:05 PT
Wishing Everyone a Happy Thanksgiving Weekend
I love this holiday. Maybe when we get thru the pot shop issues we will get some decent news that can help us move forward in the coming year. Have a safe and wonderful time!
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Comment #13 posted by Oleg the Tumor on November 22, 2011 at 15:16:34 PT:
This is a good thing . . . in a weird sort of way.
The more states with I-502 type legislation-the better.
Eventually a Federal court will stumble over a case that won't go as expected for the fear-mongers. Nobody bats one thousand, nobody. How many states does it take to ratify a Constitutional Convention? Two thirds?
So when 2/3 of the states enact Marijuana laws . . . does that count?
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Comment #12 posted by museman on November 22, 2011 at 13:43:16 PT
The catch 22 of liberty
Having to get 'permission' for it from the ones who take it away!There is no liberty in being bound to a system that serves only the rich and those who will sell and compromise their integrity for a 'piece of the (rich-mans) pie'!There is no freedom in a state that regulates everything for the profit of the ruling few.There is no justice in a system that is run by criminals and thugs.There is no common sense in a system that breeds 'specialized interpretations' of 'law' and the US Constitution - no common sense in the 'profession' of 'law.'If we need interpreters to interpret 'law' that is supposedly 'ours' and supposedly 'serves the people' then the 'law' needs to be re written in common language so that the exclusive club of lawyers and politicians who now pander and server the uber-wealthy -in extremely fascist ways- no longer exists. - a catch 22 the the system dogs have made much use of since the government was hi-jacked, first in the 1700's and almost complete by the 21st century.The government is corrupt, from the township to the office of the president. There are no 'representatives' of the people -there never have been. The government of the US has been representing the interests of the ruling few since Madison, though Washington was a 'favorite son' of these power brokers who 'funded the war' (at the last minute.)Finally, it is not just a few, ignored voices out on the fringe, but becoming common knowledge amongst the people of the world, just how they have been used, abused, and that 'the modern world' is no better for all of its shiny new toys.Freedom is not a privilege to be handed out to 'favored slaves' it is a human birthright, an endowment that cannot be given, only taken away by force of arms.People want freedom? In anything? STOP ASKING FOR PERMISSION! Those you think you must ask do not have any real authority, so they must ENFORCE it!LEGALIZE FREEDOM
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Comment #11 posted by HempWorld on November 22, 2011 at 09:57:00 PT
Pictures of Grandfather Bush with Hitler,
Eisenhower, Nixon and the Yale Skull and Bones Image used in Nazi Germany, courtesy of Prescott Bush.Check it out! Wake up!
The Career of Prescott Bush!
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Comment #10 posted by museman on November 22, 2011 at 09:45:37 PT
afterburner, HempWorld
Yes. Yes, and yes.Thank you for not being afraid of the truth -even if it isn't specifically on the 'topic list,' or mainstream-socially and politically 'correct.'Sooner or later the real ugly truth about the origins of this 'choice of death' that permeates the false value systems propagated by the status quo (the agenda of the 1%) is going to come out in ways that can no longer be denied by the willing servants and slaves of mammon.On the day that the arrogant are humbled, I will forgive them. Until then, they are public enemy #1(%).LEGALIZE FREEDOM
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Comment #9 posted by afterburner on November 22, 2011 at 09:16:47 PT
Hemp World
Thanks for the Thrive link: it puts together many problems & solutions in an interesting way.This morning as I left for work a cold wind was blowing down the last of the leaves. I was just thinking how much easier it will be now to trim the bushes since the Fall has reduced them to bare branches.Then, I thought how this is the way the controllers of society view people and resource management. Living nature is their enemy. They prefer things that are dead & easier to manage. Healthy people are not money-makers for Big Pharma & Big Medica. The Pharma/Medica-complex prefers to sell dead chemicals, at high prices with great profits instead of living herbs and plants. The sick people,who buy these dead chemicals get all their debilitating side effects. Big Agriculture and their puppet government leaders prefer dead food to living raw foods from nature. Thus, the food safety laws are written to fumigate, sterilize and pasteurize foods to death, removing enzymes, phytonutrients, vitamins and minerals. Furthermore, herbicides, pesticides and toxic water from industrial and agricultural pollution end up in this so-called "safe" food.Renewable energy is too alive to appeal to the control freaks of Big Oil and Big Coal. They prefer dead fossil fuels which they can meter for profit from the 99%. Big Nuclear also is based on a finite supply of naturally radioactive elements that produce measurable electric power and profit. The deadly radioactive waste from this technology will haunt future generations for tens of thousands of years. The Bible says "Choose Life," but the 1% prefer to worship mammon (money) and thus choose death.
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Comment #8 posted by Oleg the Tumor on November 22, 2011 at 05:38:40 PT:
                    Hemp World
Thanks for the link. Terribly interesting stuff. 
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Comment #7 posted by FoM on November 22, 2011 at 04:52:44 PT
Obama Pardons: President Issues 5 Pardons
November 21, 2011URL:
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Comment #6 posted by The GCW on November 21, 2011 at 21:28:40 PT
Hemp World,
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Comment #5 posted by HempWorld on November 21, 2011 at 16:27:32 PT
OT Highly Recommended Watch Thrive!
I watched it last night on but now I just noticed it has been removed.This is a movie that puts it all together and explains why Cannabis and Hemp will NEVER be legalized in ANY form, except maybe marinol. This obviously not what I want.Maybe this link works and look for it on where you maybe able to watch it in parts, or
Thrive The Movie (Trailer)
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Comment #4 posted by afterburner on November 21, 2011 at 09:53:49 PT
The Real Boogie Man, and not the Dancin' Kind
Single Convention on Narcotic Drugs treaty, bought and paid for by the US Federal Government, allows medical and scientific use of controlled substances, but encourages national governments to harm-onize their laws with the "UN" goal of prohibiting traffickers and producers.Excerpt: "As of January 2005, the Single Convention had 180 Parties."However, their are no balloons, party favors, cake, ice cream or fizzy beverages at these parties. The UN Single Convention on Narcotic Drugs and its increasingly police state successors are the original party poopers. 
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Comment #3 posted by HempWorld on November 20, 2011 at 14:53:19 PT
Federal law is misapplied!
Constitutionally, federal law can only then be applied IF it touches upon interstate commerce.The federal gov't is overreaching and infringing on state's rights. Federal law is made by congress, which is paid off by lobbyists, other business interests and insider stock trading.
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Comment #2 posted by Oleg the Tumor on November 20, 2011 at 14:34:15 PT:
And this isn't a "Fancy Estoppel"?
I just wish they would stop calling marijuana a "substance", a "drug", a "narcotic" and other euphemisms designed to obfuscate, confuse and intimidate.It is a plant.Q. How do we make them understand that?A. You don't. They're not interested. They're only afraid of losing their budget allocation for next year, if not their jobs this year. They are not focused on botany."The question remains", as Spock would say.It is still a plant.Legalize Freedom Before We Forget What It Is!
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Comment #1 posted by runruff on November 20, 2011 at 13:04:42 PT
To me this about says it!
About civil disobedience­; It is impossible to stand up to a corrupt government without breaking their corrupt laws!I would also add that as citizens of a free nation, it is our duty to do so! 
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