Pubdate: Thu, 09 Jun 2005
Source: Star-Banner, The (FL)
Copyright: 2005 The Star-Banner
Contact:  http://www.starbanner.com/
Details: http://www.mapinc.org/media/1533
Author: Clarence Page
Note: Clarence Page writes for Tribune Media Services.
Bookmark: http://www.mapinc.org/topics/Raich (Raich v. Gonzales)

HIGH COURT BURNED MEDICAL POT

The commerce clause in Article One of the Constitution could hardly be
more clear in limiting federal power to commerce "among the several
States," not within a state.

But in Gonzales vs. Raich, the Supreme Court's medicinal marijuana
case, a 6-to-3 majority has stretched "commerce" to mean just what
they choose it to mean -- far enough to let the faraway feds, not the
close-to-the-people state governments, decide whether their ailing
residents should be allowed to grow their own medicine under a
doctor's care.

In the heated debate over judicial appointments, we constantly hear
conservatives argue judges should lean toward a modest role for the
national government. Nevertheless, the Supreme Court reasserted
federal authority in Gonzales vs. Raich, even in the 11 states that
now permit marijuana when recommended by a doctor.

The people in those states have spoken and the Supreme Court has told
them to shut up.

Justice John Paul Stevens' majority opinion stretched the meaning of
"commerce" to include anything done in one state that could have "a
substantial effect on interstate commerce." And how does the court
define "substantial"?

". . .(P)roduction of the commodity meant for home consumption, be it
wheat or marijuana, has a substantial effect on supply and demand in
the national market for that commodity," Justice Stevens wrote.

Arch-conservative Justice Antonin Scalia chimed in, if only to say
that Stevens' federal intrusionism did not go far enough. "Drugs like
marijuana are fungible commodities"; even when "grown at home and
possessed for personal use," marijuana is "never more than an
instant from the interstate market."

How much impact can it have on the overall illegal
multi-billion-dollar industry?

That very rational point was made by Justice Clarence Thomas, who cut
himself loose from his usual tether to Scalia to raise a compelling
voice of reason: If the two defendants in this case are involved in
"interstate commerce," he asked, what in these United States is not
"interstate commerce?"

"Respondents Diane Monson and Angel Raich use marijuana that has
never been bought or sold, that has never crossed state lines, and
that has had no demonstrable effect on the national market for
marijuana," Thomas wrote. "If Congress can regulate this under the
Commerce Clause, then it can regulate virtually anything -- and the
Federal Government is no longer one of limited and enumerated powers."

In other words, keep your federal hands out of matters that pertain
only to a particular state and do not infringe on fundamental human
rights.

That human rights point is particularly significant to African
Americans like Thomas and me. We happen to be old enough to remember
when "states' rights" was offered as a lame excuse to perpetuate
racial segregation laws in the South. The 1954 Brown vs. Board of
Education decision properly overruled "states' rights" that violate
fundamental human rights.

By contrast, Gonzales vs. Raich ironically overrules states' rights in
order to violate a humane right, the right of the sick to treat their
own illness. "Our federalist system, properly understood, allows
California and a growing number of other states to decide for
themselves how to safeguard the health and welfare of their
citizens," Thomas writes. Right on.

The good news in Gonzales vs. Raich is that the high court did not
overturn any of the existing state medicinal marijuana laws. Stevens'
decision also ruled in defiance of Congress and John P. Walters, the
director of national drug control policy, that marijuana does indeed
have "therapeutic value."

Stevens suggested the executive branch might reclassify marijuana for
medical purposes or that Congress might allow "the laboratory of the
states" to decide this matter for themselves.

In fact, Congress is currently considering two bills, backed mostly by
Democrats and libertarian-leaning Republicans, that could legalize the
medicinal use of marijuana at the federal level.

Congress usually kicks such hot-burning issues as marijuana reform
over to the courts. This time, the courts have kicked it right back.
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MAP posted-by: Richard Lake