Pubdate: Fri, 01 Jun 2001
Source: Bay Area Reporter (CA)
Copyright: 2001 The Bay Area Reporter / B.A.R.
Contact:  http://www.ebar.com/
Details: http://www.mapinc.org/media/41
Author: Pebbles Trippet
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)

STATES' RIGHTS ARGUMENT NEEDED

Now that we've lost a unanimous U.S. Supreme Court decision on medical 
marijuana, we need to think seriously about what we did wrong.

Remarkably enough, the court decided no important issues. Why? Because our 
lawyers virtually omitted states' rights (and all other constitutional 
questions) from their arguments, instead betting everything on statutory 
interpretation -- i.e., what Congress intended to do, as distinct from what 
Congress has a right to do. As a result, all the court decided was whether 
Congress intended to allow a "necessity" exemption, because that's all the 
court was asked to decide.

In footnote seven of the court's ruling, Justice Clarence Thomas emphasized 
that the case did not present any constitutional issues, then gave an 
example: "whether the Controlled Substance Act exceeds Congress' power 
under the Commerce Clause."

In other cases (i.e., his concurrence in U.S. v. Lopez, 1995, 514 U.S. 
549), Thomas has argued that Congress' jurisdiction over interstate 
commerce does not include local commerce, so it's fair to say his note was 
his way of hinting that states' rights over the local practice of medicine 
is the issue he thinks we should be arguing.

By neglecting all constitutional arguments, we lost unanimously. By arguing 
states' rights (among other constitutional issues), we'd at least get 
Thomas's support, and very likely win the case, since he usually commands a 
majority on Commerce Clause questions.

So what have we been waiting for?

Pebbles Trippet, Albion, California
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MAP posted-by: Keith Brilhart