Pubdate: Wed, 08 Jun 2005
Source: Newsday (NY)
Copyright: 2005 Newsday Inc.
Contact:  http://www.newsday.com/
Details: http://www.mapinc.org/media/308
Author: Nick Gillespie
Note: Nick Gillespie is editor in chief of Reason magazine.
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Cited: Drug Enforcement Administration ( www.dea.gov )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/opinion.htm (Opinion)
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)

SMOKE MUST HAVE BLINDED THE COURT

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

Writing for the 6-3 majority, the 85-year-old liberal Justice John
Paul Stevens 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
percent of California voters when they approved a proposition
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 a 1942 case, it claims 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." It's not even clear that medical
marijuana is commerce as we normally understand the term.

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' 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.)

In her opinion, O'Connor stressed that having states experimenting
with state medical marijuana laws "exemplifies the role of states as
laboratories" of democracy. The majority, though, ruled such
experiments 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 Attorney General 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," he said.
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