Unpacking the Sausage: A puff piece on who drives the law

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A new study came out this week indicating that cannabis may impede COVID-19 from attaching to healthy cells. Phew! If I smoke enough weed, I might be able to keep this walking co-morbidity of a body from catching COVID – what a time to be alive!

So, how is the government gonna screw this up?

Bre KidmanAs cannabis decriminalization blazes a trail across the American landscape, poor people (and especially poor Blacks or other people of color) continue to face jail time while major corporations take the same actions to an exponentially larger scale and laugh all the way to the bank. With adult-use cannabis markets taking shape in Maine, large corporations are jockeying to buy limited permits out from under long-time mom-and-pop grow operations. If there’s a loophole to be exploited, they’ll find it. 

In a near-perfect illustration, Wellness Connection and High Street Capital’s ongoing lawsuit against the state of Maine relies on what is arguably the biggest legal loophole in the country. They argue the state’s residency requirement for cannabusiness is unconstitutional because it restricts interstate commerce.

Judge Nancy Torresen agreed, leading the state to make a first-in-the-nation appeal to the 1st U.S. Circuit Court of Appeals. That interstate sales of marijuana are still very much illegal is apparently not a barrier to the all-powerful constitutional catch-all that is the Dormant Commerce Clause. The front door to federal overreach strikes again.

The logical backbends required to reach that conclusion remind me of an old Mel Zarr chestnut Maine Law grads will undoubtedly recall: Law is a lawyer-driven process. 

I learned this phrase in my first week of law school. Back then, I was not prepared for the full weight of its meaning, which eventually edged out the Rule Against Perpetuities for “hardest lesson of law school.” It’s tough to convey in a sentence or two, but the gist is, through the arguments they present, lawyers are responsible for the way laws get applied to real-life situations. 

We may have books of statutes, but when a real-life conflict makes it to a courtroom, the text of the statute gets applied to the conflict. The result is a precedent that binds all lower courts to apply the statute similarly. In essence: the law means whatever the highest judge on the food chain says it means. Lawyers compare and contrast situations and interpretations in their arguments to get the result their clients want and, in doing so, weave the tangled mess that is our legal system.

When I was in law school – and even into my first few years of practice – I found these discrepancies infuriating. It was painful to wrap my head around the way The Law, which I had romanticized into something more like enforceable ethics, is really just a series of flexible guidelines made case-by-case by flawed human beings who are trying to get paid and can’t really project the impact of their actions much farther than the situation at hand. 

For the socioeconomically blessed, this is a feature and not a bug. Power will do whatever it takes to ensure it stays concentrated in the right hands – and to keep “undesirables” conveniently locked up out of the way. Flexible standards make for easy bending. The Rules of Professional Conduct for lawyers require that our arguments pass the straight-face test, but more and more I’m finding that people with power seem to share an uncanny ability to keep their faces neutral through increasingly absurd talking points designed to conceal their obvious bend in the direction of capital.

It’s true that a judge might occasionally nullify a statute as being too vague to interpret effectively or find a David-versus-Goliath story compelling in spite of the differences of quality of their respective lawyers’ suits. But, then again, if the 1st Circuit muddies the waters enough, the cannabis megacorporations – and the prison industrial complex – can continue to be exorbitantly profitable. 

Suffice it to say I’m not going to be surprised to hear about the next wave of federal prosecutions for individuals growing a plant that protects against the pandemic while some pharmaceutical company makes billions doing the same exact thing.

But, on the bright side, corporate overlords suing for the right to steamroll small businesses could collide with cannabis killing COVID to finally force the federal government to decriminalize weed. That would be something.

In the meantime, I just hope the feds don’t come to raid my coffee table after my weekly curbside dispensary run. Talk about a buzzkill.

Bre Kidman is an artist, activist, and attorney (in that order), and the first openly non-binary person in history to run for the U.S. Senate. They would be delighted to hear your thoughts on the political industrial complex (or your favorite local sativa) at [email protected].

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