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The Doctrine of Constructive Implication and the Federal War on Drugs

The Doctrine of Constructive Implication and the Federal War on Drugs

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Published by anim8rsmith
What you are about to read is the distillation of nearly 20 years of locating, accumulating, reading, studying and cross referencing every relevant government document and court case one committed drug war prisoner could find. He used them to choreograph the litigation of a seemingly unconnected series of court cases of his own to test his emerging "theory" that the federal war on drugs is wholly devoid of lawful authority by its own statutory limitations.
What you are about to read is the distillation of nearly 20 years of locating, accumulating, reading, studying and cross referencing every relevant government document and court case one committed drug war prisoner could find. He used them to choreograph the litigation of a seemingly unconnected series of court cases of his own to test his emerging "theory" that the federal war on drugs is wholly devoid of lawful authority by its own statutory limitations.

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Published by: anim8rsmith on Jun 10, 2009
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02/03/2013

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From the May 2009 Idaho Observer:
The Doctrine of Constructive Implication and the federal war ondrugs
The federal government has lost every war it has waged since WWII. But through losing federal wars onoverty, homelessness, illiteracy, crime, sex and violence on TV, domestic violence, child abuse, racism,terrorism—and drugs —they are winning an undeclared war: The war on freedom. What you are about to read is the distillation of nearly 20 years of locating, accumulating, reading, studying and crossreferencing every relevant government document and court case one committed drug war prisoner could ind. He used them to choreograph the litigation of a seemingly unconnected series of court cases of hisown to test his emerging "theory" that the federal war on drugs is wholly devoid of lawful authority by itsown statutory limitations. With the most comprehensive body of documents and experience at our disposal because of this one man, the drug war story emerges. It is so simple that even an attorney canunderstand it so long as he is not among those feverishly taking prisoners in a war that, like all the other ederal wars, was never meant to be won. At the end of this article, which was several months in themaking, I will be asking you to honor the author by playing a small role in a simple action plan that should end the phony war on drugs and, hopefully, expose the federal government’s other phony wars—all of which are being waged to provision legions of bureaucrats with the undeclared mandate of conquering the American people by pecking them to death with petty laws.
By Duane R. Olson
Abstract
Pictured is federal drug war prisoner Duane Olson (80) with two of his grandsons during a recent visit. When Olson was convicted 19years ago these two men were boys. Olson now has four great-grandchildren he has never met. Olson is just one of an estimated125,000 lawlessly imprisoned federal drug war prisoners. Aside from the lives this illegally declared federal "war" has ruined, the U.S.government has treaties with 96 foreign nations to supply them with untold $billions worth of weapons and training under the color offighting the losing war on drugs
Page 1 of 8The Doctrine of Constructive Implication and the federal war on drugs6/10/2009http://www.proliberty.com/observer/20090502.htm
 
The federal enforcement of laws prohibiting the manufacture, sale, possession or consumption of "controlled substances," which is historically rooted in the Food, Drug and Cosmetic Act of 1938,essentially began with Leary v. U. S.; 23 L Ed 2d 57 (1969) and Turner v. U.S.; 396 US 398 (1970). The"rules of engagement" in the federal war on drugs began taking shape when President Nixon signed "TheComprehensive Drug Abuse Prevention and Control Act (CDAPCA) of 1970" into law as Public Law 91-513. The Controlled Substance Act was passed as Title II of the CDAPCA and was amended by Congressin 1984 with passage of the Comprehensive Crime Control Act (CCA). Significant to this essay areamendments to the penalty provision at 21 USC §841(c).The aforementioned cases and acts of Congress provide the framework within which the federalgovernment is currently waging its much-lauded "war on drugs." An analysis of relevant Supreme Courtdecisions and legislative acts as they apply to constitutional limitations reveals that the federal war ondrugs, particularly as it is has been waged since 1986, is legally illogical and wholly devoid of lawfulauthority. In the absence of lawful authority or legal logic, the federal war on drugs is being wagedthrough the deliberate suspension of constitutional limitations and "artful" interpretation of statutoryconstruction: "The Doctrine of Constructive Implication."
"Unfortunately, grave evils such as the Narcotics traffic can too easily cause threats to our basic libertiesby making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct."
~Justice Hugo Black (Turner v. U.S. [1970])
Background
Turner, a 1967 federal drug case, was prosecuted under federal narcotic importation laws at Title 21 USC§174, (1909). At trial, the government presented evidence that packages in the possession of Turnercontained heroin but presented no evidence of its origin. §174 provided, in relevant part, "possession of the narcotic drug….shall be deemed sufficient to authorize conviction unless the defendant explains thepossession to the satisfaction of the jury."Turner did not take the stand. The jury convicted and Turner appealed to the U.S. Supreme Court. Thecase was argued October 15, 1969.The first of four counts charged Turner with violating 21 USC §174, alleging that he had possessed theforbidden drug, "…knowing that the heroin had been unlawfully imported into the United States" and theSupreme Court upheld the trial judge’s jury instructions that Turner’s unexplained possession of theheroin was sufficient evidence to infer that Turner, in fact, knew that the heroin had been illegallyimported.Justice Black, joined by Justice William O. Douglas, offered a dissenting opinion stating that, "…thestatutory presumptions unconstitutionally deprived the defendant of the presumption of innocence, castupon him the burden of proving that he was not guilty, and obligating him to rebut the presumptions,tended to compel him to testify in violation of his privilege against self incrimination," in violation of theFifth Amendment to the Constitution.On January 20, 1970, the U.S. Supreme Court reversed counts three and four in Turner but upheld countsone and two. Essentially, the Court concurred that it was correct for the government to presume thatTurner knew the heroin was illegally imported without having to prove the charge.
 
Page 2 of 8The Doctrine of Constructive Implication and the federal war on drugs6/10/2009http://www.proliberty.com/observer/20090502.htm
 
Six months prior to Turner’s appearance, the U.S. Supreme Court had rendered a decision in Leary v.U.S.; 23 L Ed 2d 57 (May 19, 1969). The case stemmed from an incident where U.S. Customs agents inTexas found a small amount of marijuana in the vehicle driven by Dr. Timothy Leary as he was crossingback into the U.S. from Mexico. Leary was subsequently convicted under the "Marihuana Tax Act of 1937" by a federal judge for failing to pay the $100 per ounce federal importation tax on marijuana.Leary was then sentenced to 30 years in federal prison and ordered to pay a $30,000 fine.Leary appealed by challenging the constitutionality of the Marihuana Tax Act on grounds that itcompelled self-incrimination, in violation of the 5
th
Amendment.The Supreme Court unanimously overturned Leary’s conviction, ruling that the 1937 Marihuana Tax Actconstituted double jeopardy.Congress’ reaction to the Supreme Court’s decision in Leary was to repeal the Marihuana Tax Act uponpassage of "The Controlled Substance Act (CSA) of 1970." Passage of the CSA by the 91
st
Congress wasthe federal government’s opening salvo in its now infamous, costly and apparently unwinable war ondrugs.
Federal control of substances
Since the 1970 passage of the Controlled Substances Act, all three branches of the federal governmenthave been proceeding as if the 91
st
Congress enacted a law that made it, "unlawful for any person" topossess, manufacture, distribute, or dispense, a "controlled substance." However, no such law wasenacted then or since. Not even one syllable of the CSA of 1970, Public Law: 91-513, codified into the"Food, Drug, and Cosmetic Act of 1938," Title 21, confers federal jurisdiction over the (unalienable)right of "any person" to plant, cultivate, harvest, buy, sell, or ingest, by whatever method and forwhatever purpose, marijuana or any other "recreational" drugs (state and local laws notwithstanding).The abuse of drugs, narcotics and hallucinogens may be a federal concern but, as Justice Black observedin Turner, "Our Constitution was not written in the sands to be washed away by each wave of new judgesblown in by each successive political wind that brings new political administrations into temporarypower."Such political winds began blowing when the new Nixon administration decided to gain "control" of "substances" through acts of Congress.From the very beginning, it has been affirmed that this "…government is…. one of enumeratedpowers" (McCulloch v. Maryland; 4 Wheat [17US] 316, 405 [1819]). Since there is no enumerated powerin the Constitution for Congress to directly control the people’s desire to produce, possess and consumedrugs and; since the Supreme Court effectively reversed Congress’ power to tax drugs in Leary, the 91
st
 Congress made "findings and declarations" that a major portion (but not all) drug traffic flows throughinterstate commerce and foreign trade. Therefore, Congress reasoned, it has the authority to"regulate" (not control) the flow of drugs, narcotics and hallucinogens pursuant to Article 1, Section 8,Clause 3 of the Constitution. To wit: "The Congress shall have Power….To regulate Commerce withforeign Nations, and among the several States."To draft a legislative act that would provide Congress with the authority to enforce its regulatory mandateunder the Constitution, President Nixon’s Chief Domestic Advisor John Erlichman commissioned EgilKrogh and Don Santarelli, two young college grads with special political ties and linguistic expertise, todraft the "DC Crime Bill" (1970). The plan was to first get the federal crime bill passed in Washington,
 
Page 3 of 8The Doctrine of Constructive Implication and the federal war on drugs6/10/2009http://www.proliberty.com/observer/20090502.htm

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