norml17 - Page 22
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addressed by analogous constitutional claims. Preexisting law can _us help
to define the scope of a co_fitudonal fight later established."s3
At first blush, this may appear to look to laws predating the
constitution, but since the court in Gum_w_N! analyzed WasbAngtoffs history of
protection of teIephone usage, the analysis is obviously not so firnited)_
Clearly, Washington has a history of concern for its citizens having
access to marijuana as a therapeutic drag that the federal government does
not, as witnessed by the ControlIed Substances Therapeutic Act in 197985 and
the Appeals Court decision in
_tate Vo____. in 1977o 86
As with the analysis in Guw.WA_!l itseff, the existence of this history
mitigates for analysis under the state constitution°
As for marijuana Iaws predating the state constitution, there were none.
Inhaling opium and operating a house where inha!ing opium took Nace were
made illegat by the territorial laws in 1881o The earliest reference m
mrffijuana ("cannabis") this researcher could find was in the Laws of 1951.
Marijuana was widely and legally used in the early decades of this cen0ary,
prohibited by neither state nor federal law. 87
5. Differences in structure between the f_d state constitutions.
"The former is a grant of enumerated powers m the federal
govermrient, and the latter serves to timAt the sovereign power wNch inheres
directly in the pe@e and indirectly in their elected representadveso Hence
the explicit affirmation of ffunchmental rights in o_ state constitution may be
seen as a guaranty (sic) of those rights rather than as a restriction on themo TM
g3 _G_nwalI, _up_r_, _ote 50, at 61, 62.
_4/_l at 66.
85 _ note 14.
e6 _ note 20°
g7 My inability to cite au_ority here reflects the disadva_hages of doing research betwee_ semesters,
when reference fibrarians _re elsewhere emd large rooms of reference materi_ are locked. Trast me o_
8s _, _ note 50, at 62°
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