Pubdate: Mon, 27 Jun 2005
Source: New Yorker Magazine (NY)
Copyright: 2005 The Conde Nast Publications Inc.
Contact:  http://www.newyorker.com/
Details: http://www.mapinc.org/media/847
Author: Hendrik Hertzberg
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?232 (Chronic Pain)
Cited: Gonzales v. Raich ( www.angeljustice.org/ )

WATCHED POT

If hard cases make bad law, as a three-hundred-year-old courthouse saying 
has it, then the case of Gonzales et al. v. Raich et al. ought to have been 
easy and good. The case is--or appears to be--about marijuana and illness.

On one side is Attorney General Alberto Gonzales, whose et al. consists of 
the massed power of the United States government. A.G.A.G. et al. take the 
position that because Cannabis sativa is irredeemably wicked and has no 
legitimate uses, medical or otherwise, the possession of it, to say nothing 
of its cultivation, distribution, or sale, is quite properly forbidden by 
federal law. On the other side is Angel Raich, a thirty-nine-year-old 
mother of two from Oakland, California. Raich does not have cancer, aids, 
multiple sclerosis, or epilepsy--the big-ticket ailments whose symptoms can 
often be palliated by marijuana.

But she does have more than her share of physical troubles, including an 
inoperable (though nonmalignant) brain tumor.

Pharmaceutical remedies having proved unavailing, her physician suggested 
marijuana, which has worked well enough to afford her something like a 
normal life.

Raich's et al. consists of a couple of anonymous gardeners who tended the 
plants whose buds she baked into cookies, and a second California woman, 
Diane Monson, who grows her own, with which, on her doctor's advice, she 
relieves her otherwise intractable back spasms.

Monson did grow her own, at any rate, until agents of the Drug Enforcement 
Agency came to her house and chopped down her plants, all six of them, with 
machetes while she, Barbara Fritchie-like, read aloud the text of 
Proposition 215, the popular initiative by which California, nine years 
ago, approved the medical use of marijuana.

You might say, therefore, that Raich's et al. also includes, in spirit, the 
millions of Californians who voted for Prop 215, plus the voters and 
legislators of the ten other states where medical-marijuana laws have been 
enacted, plus the Institute of Medicine, the American Academy of HIV 
Medicine, the American Academy of Family Physicians, the American Nurses 
Association, the American Public Health Association, the California Medical 
Association, the Lymphoma Foundation of America, the New York State 
Association of County Health Officials, and the Medical Society of the 
State of New York, plus peer-reviewed publications such as The Lancet and 
the New England Journal of Medicine--all of which have attested to 
marijuana's medical usefulness.

Earlier this month, by a vote of six to three, the Supreme Court went with 
the A.G. and his et al., leaving Raich and hers in the lurch.

But the ruling had nothing to do with marijuana's wickedness (which none of 
the four written opinions, two on each side, took seriously) and little to 
do with its efficacy in relieving suffering (which all four took for 
granted). To make sense of Gonzales v. Raich, a Supreme Court Decoder Ring, 
available with three box tops from Original Intent Cereal, would be a 
valuable accessory.

The ruling, you see, was all about the Constitution's commerce clause, the 
one that authorizes Congress to "regulate Commerce with foreign Nations, 
and among the several States." The majority asserts demurely that its 
ruling is "a modest one." The Justices do not say that the federal ban on 
marijuana is a good idea, or that it makes sense to punish the sick for 
using it, or that a sick person growing her own pot in her own back yard is 
engaged in Commerce among the several States. It does not even say that the 
aggregate production of back-yard medicinal-marijuana gardens would 
"substantially affect interstate commerce." All it says is that "a 
'rational basis' exists for so concluding"--whether or not a more 
compelling "rational basis" exists for concluding the opposite.

But this is enough to sic the feds and their machetes on Ms. Monson's pot 
patch.

Gonzales v. Raich jumbled the Court's usual ideological battle lines. The 
four moderate-to-almost-liberal Justices--David Souter, Ruth Bader 
Ginsburg, Stephen Breyer, and John Paul Stevens, who wrote the majority 
opinion--ended up, confusingly, on the "anti-marijuana" side. The two 
softish states'-rights conservatives were divided: Sandra Day O'Connor 
wrote the main "pro-marijuana" dissent, while Anthony Kennedy went the 
other way. The hard right split 2-1: the Chief, William Rehnquist, and 
Clarence Thomas (pro); Antonin Scalia (anti). All very puzzling to 
civilians, but Decoder Ring-wearing Court observers speculate that the true 
agenda of the majority (especially its moderate members) was to slow the 
Court's "federalist" (that is, antifederalist) drift toward chipping away 
at the regulatory powers of the national government, while the minority's 
purpose was to accelerate that drift.

Kennedy's well-known hostility to pot seems to have trumped his dislike of 
federal regulation. Scalia's concurring opinion (which, with characteristic 
modesty, he described as "more nuanced" than Stevens's) was devoted largely 
to explaining why his concurrence should not be taken to suggest that he 
likes big gummint.

The least muddled opinion was Justice Thomas's separate dissent, certain 
passages of which (e.g., "In the early days of the Republic, it would have 
been unthinkable that Congress could prohibit the local cultivation, 
possession, and consumption of marijuana") could have been written by 
Justice Cheech or Justice Chong. Thomas's private views on marijuana are 
unknown, but if he had his way, as expressed in this particular opinion, 
any federal interference with homegrown, home-smoked pot, whether for 
medical or recreational purposes, would be ruled out as an unconstitutional 
usurpation of the states' powers "to protect the health, safety, and 
welfare of their citizens." But, then, almost any federal effort to protect 
those things would be similarly inadmissable. Hello to bong hits, but 
goodbye to workplace safety, environmental regulations, and Medicare. 
Thomas's view has the virtue of consistency. But consistency is not the 
same as wisdom.

Stevens, in the final paragraph of his opinion, came close to begging 
Congress to do something about the heartlessness of using federal cops to 
harass sick people whose suffering marijuana eases.

He noted that there are bureaucratic procedures that would allow marijuana 
to be reclassified as a drug with legitimate medical uses. "But perhaps 
even more important than these legal avenues," he added, "is the democratic 
process, in which the voices of voters allied with these respondents may 
one day be heard in the halls of Congress."

Last Wednesday, as if on cue, the House of Representatives took up for the 
third straight year the bipartisan Hinchey-Rohrabacher amendment, which 
would deny the Department of Justice funds to surveil, arrest, or prosecute 
patients in states that have medical-marijuana laws. For the third straight 
year, it failed, though the margin of defeat this time was smaller than it 
was last year, and last year it was smaller than it had been the year before.

Someday the cruelty of the "drug war" will give way to laws and policies 
based on reason and justice.

But that day is painfully slow in coming, and no drug, legal or not, can 
take the pain away.
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MAP posted-by: Beth