Pubdate: Fri, 17 Dec 2004
Source: DrugSense Weekly
Section: Feature Article
Website: http://www.drugsense.org/current.htm
Author: Sheldon Richman
Note: Sheldon Richman is senior fellow at The Future of Freedom Foundation 
- - http://www.fff.org

STATES SHOULD END THE DRUG WAR

"Medicine by regulation is better than medicine by referendum." U.S. 
Supreme Court Justice Stephen Breyer said that during last week's arguments 
over the much-watched medical-marijuana case. Breyer, in other words, 
prefers that any change in the government's prohibition of marijuana use be 
accomplished by an appeal to the federal drug-enforcement authorities 
rather than by a public vote in the states, such as occurred in California.

But he is really saying that medical oppression by an elite is better than 
medical oppression by the mob.  Are those our only choices? Why must we 
have medical oppression at all? Why not medicine by free individual choice? 
That this is not even on the table shows how far our society has moved from 
its individualist foundations.

The case Ashcroft v.  Raich has two dimensions, procedural and substantive, 
and it is important to consider them separately. People who approve of 
"medical marijuana" - that is, empowering doctors to prescribe pot to 
certain sick people - tend to favor letting the states partially nullify 
the federal drug ban.  And people who disapprove of medical marijuana tend 
to favor having the federal government veto such state nullification.  But 
a mix and match is coherent and even sensible.  That is, one can oppose the 
federal government's effort to stop states from enacting medical-marijuana 
laws while also opposing those laws. I shall explain.

The Founders of the United States understood the threat to liberty from 
concentrated political power, so they tried to divide power not only among 
the three branches of the national government, but also between the 
national and state governments. Back then, people saw their respective 
states as sovereign and never would have assented to a scheme in which the 
states became mere administrative subdivisions of the national government. 
As a result, the Congress was delegated a few defined powers (to use James 
Madison's term) and the states retained other powers by default. (See the 
Tenth Amendment.)

Unfortunately, the eminently sensible division of powers, called federalism 
but mislabeled "states' rights," acquired a bad name, primarily because of 
the violations of blacks' rights after the War between the States.  (Before 
the war, the slave states were not consistent advocates of states' rights; 
they self-righteously objected when northern states passed personal-liberty 
laws that in effect nullified the federal fugitive-slave act.)

Since the New Deal, federalism has essentially been abolished by the 
Supreme Court's permissive attitude toward Congress and the Constitution 's 
"commerce clause." Until recently, Congress could get away with passing any 
law as long as it claimed authority under that clause.  That has begun to 
change. In recent years the Court has found two cases in which Congress's 
resort to the commerce clause was just too transparent to tolerate.

Now it has to contend with Raich and state medical marijuana. Here's the 
rub: most people who say they like federalism want no part of anything that 
looks like a loosening of the marijuana laws. And those who embrace medical 
marijuana dislike states' rights in most other cases.  It's a topsy-turvy 
world! The indications at last week's Court session were that federalism 
will take a hit.

Here's what ought to happen: The Court should endorse federalism and stop 
the Bush administration from interfering with the states on medical 
marijuana.  It should also recognize that the federal government has no 
constitutional authority to regulate drugs. It is worth recalling that the 
Constitution had to be amended before the federal government could prohibit 
alcohol in the 1920s. Why then has it been able to ban drugs without an 
amendment?

Once the feds are disarmed in the war on drug makers and consumers, the 
states should repeal their own laws against production, sale, and 
possession.  All prescription laws should also be repealed. Then we will 
have real individual freedom and self-responsibility. Self-medication is as 
inalienable a right as self-education. Medical marijuana does not advance 
liberty.  It only empowers doctors. The idea that government should decide 
whether marijuana is medicine or not and whether doctors should be 
permitted to give it to sick people ought to be offensive to any 
self-responsible American.
- ---
MAP posted-by: Richard Lake