Pubdate: Tue, 07 Jun 2005
Source: Los Angeles Times (CA)
Copyright: 2005 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Nick Gillespie
Note: Nick Gillespie is editor in chief of Reason magazine.
Cited: Gonzales v. Raich  http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

WHAT WERE THOSE JUSTICES SMOKING?

The Medical Marijuana Ruling Is Legally and Morally Flawed.

Monday's Supreme Court ruling against medical marijuana was widely 
expected, but that doesn't make it defensible from a legal or moral 
perspective.

Writing for the 6-3 majority in Gonzales vs. Raich, the 85-year-old liberal 
Justice John Paul Stevens solemnly counseled patients suffering chronic 
pain to turn to "the democratic process" for comfort. "The voices of 
voters," he mused, may "one day be heard in the halls of Congress" on 
behalf of legalizing medical marijuana.

His plea that those who need medical marijuana demand -- and wait for -- a 
change in federal law is weak medicine at best. The simple fact is that 
California voters, and voters in several other states, have already 
democratically raised their voices in support of allowing the use of 
marijuana in controlled situations for medical reasons.

While we consider whether the Republican-controlled Congress will pass a 
medical marijuana bill, we can listen to the howls of pain from people such 
as Angel Raich and Diane Monson, who brought the case to the Supreme Court.

They are Californians who suffer from a brain tumor and a degenerative 
spinal disease, respectively. Raich and Monson have testified that 
marijuana eases pain and helps them function in ways that other drugs do 
not. Most medical researchers find that plausible, as did 56% of California 
voters when they approved Proposition 215 legalizing medical marijuana in 1996.

In 2002, however, the Drug Enforcement Administration began to confiscate 
the drug from users because marijuana remains illegal under federal law. 
Raich and Monson sought an injunction against confiscation and other 
enforcement actions.

Now a Supreme Court majority has ruled that state laws allowing medical 
marijuana run afoul of the Constitution's "commerce clause," which gives 
the federal government supreme power to "regulate commerce .. among the .. 
states." Invoking Wickard vs. Filburn, a 1942 case involving laws governing 
wheat production, it claims, among other things, that even small amounts of 
homegrown pot used for medical purposes might well make it impossible for 
federal law enforcement to police the national market in illegal drugs.

Yet, as Justice Sandra Day O'Connor noted in her dissent, the government 
"has not overcome empirical doubt that the number of Californians engaged 
in personal cultivation, possession, and use of medical marijuana, or the 
amount of marijuana they produce, is enough to threaten the federal 
regime." As important, she wrote, it's not even clear that medical 
marijuana is commerce as we normally understand the term.

In a concurring dissent, Justice Clarence Thomas argues flatly that "if 
Congress can regulate [medical marijuana] under the commerce clause, then 
it can regulate virtually anything -- and the federal government is no 
longer one of limited and enumerated powers."

This is no small matter. In recent years, the Supreme Court has reeled in 
Congress' powers under the commerce clause. The court struck down the 
federal Gun-Free School Zones Act, which prohibited the possession of 
firearms within 1,000 feet of schools, and the Violence Against Women Act, 
which would have allowed victims of sexual crimes to sue in federal court. 
Such issues, said the court, were the states' responsibility and should 
remain beyond Congress' ever-expanding grasp. Partly because of such 
decisions, court watchers started to talk about a revival of federalism and 
states' rights as the legacy of Chief Justice William Rehnquist (Rehnquist 
joined Thomas and O'Connor in the Gonzales vs. Raich dissent.)

Indeed, in her opinion, O'Connor stressed that having states experimenting 
with state medical marijuana laws "exemplifies the role of states as 
laboratories" of democracy. According to the majority, though, such 
experiments are forbidden when it comes to medical marijuana that never 
leaves California or is never bought or sold.

If the legal reasoning behind the majority is puzzling, the moral effect is 
not. Medical marijuana users can now add possible jail time to their list 
of problems. As Monson told the media, "I'm going to have to be prepared to 
be arrested."

California Atty. Gen. Bill Lockyer claimed that the decision won't change 
police priorities, so there was no reason to panic: "Nothing is different 
today than it was two days ago." Except, of course, the legal status of 
medical marijuana.

Will Monson, Raich or any of California's medical marijuana users be able 
to call him for bail money from federal jail? 
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MAP posted-by: Richard Lake