Recreational use of marijuana is now legal in Minnesota.
However, for the most part, sale of it is still not permitted for several months until the state licenses dispensaries. Some contend that the Minnesota State Constitution gives individuals a right to sell marijuana? Does it?
Most people are familiar with the U.S. Constitution and Bill of Rights. The latter protects rights such as free speech, a right to bear arms or a right to free exercise of religion. But states also have their own constitutions and bills of rights. Often the rights found at the state level include some not found at the federal level. The same is true in Minnesota.
Among the unique rights in Minnesota is one reported on earlier in MinnPost found in Article XIII, Section 7. Adopted in 1906, the clause says: “Any person may sell or peddle the products of the farm or garden occupied by him without obtaining a license thereof.” What does this language or right protect?
First, the amendment was adopted to overturn a 1904 Minnesota Supreme Court decision State v. Jensen. In that case the court upheld a Minneapolis licensing and fee process for farmers to go door-to-door to sell their produce. The Minneapolis requirement and the Supreme Court decision so enraged the public that a constitutional amendment was adopted. The amendment perhaps reflects the traditional role and importance of farming and agriculture in the state and of what the public believed was a right of a farmer to travel from the farm to the city to sell farm products directly to customers at their door.
What does the amendment really mean or protect? There is very little case law on it and there is no definitive Minnesota Supreme Court opinion on what the amendment means or protects. At best there are Court of Appeals and attorney ceneral opinions that offer some clues.
A plain reading of the words of the amendment seem to suggest that anyone who grows their own marijuana in their own garden should be able to sell it now. Raise some pot plants in your backyard and sell to your friends? Perhaps set up a little farm stand or operate your own store? This sounds like a way around the current ban on marijuana sales. However, selling your own marijuana is more complicated than you might think based on what the courts have said.
First, in 1998 in State v. Wright the Minnesota Court of Appeals said the purpose of this amendment was to help farmers bring their crops to the market but that it did not create a fundamental liberty or right to sell farm crops. Instead as the court said in this case, the state still has the right to make some products illegal and to regulate their use. In the Wright case, the court specifically ruled that this Amendment does not protect marijuana sales and it could be regulated.
Moreover, the state and local governments have broad authority to regulate farm products for health and safety reasons. Thus in the 2005 State v. Hartmann opinion the Minnesota Supreme Court ruled that the sale of farm-raised meat could be regulated to assure public health. Similarly the state may ban the sale of unpasteurized milk or dairy products.
Given these decisions, the state could ban or regulate the sale of marijuana even by individuals who grow it on their farms or in their backyards. It could also attach conditions to regulate THC levels, make sure the marijuana is free from dangerous chemicals or that it is pure, or to prevent minors from purchasing it.
But additionally, note also what the amendment protects “sell or peddle.” What does peddle mean? According to the Court of Appeals in the Hartmann opinion, “peddle” meant to go “door-to-door” to sell farm products. It does not refer to sales from a fixed location such as a store. According to an attorney general’s opinion, sales from a fixed location such as a farm stand or store is not peddling and it could be licensed or regulated.
Perhaps then if you want to grow and sell our garden-raised marijuana you need to go door-to-door. Notwithstanding the amendment, and in the era of Amazon and internet sales, good luck with this type of in-person solicitation.
It is possible the few court cases examining this amendment have gotten it wrong and a case can be made that they are worth reexamining. However right now Article XIII, Section 7 does not look like a winning strategy to get around the current ban on marijuana sales.
David Schultz is a distinguished professor at Hamline University in the departments of Political Science, Legal Studies and Environmental Studies.