Dopey Court Ruling

It is not often that this column finds itself in agreement with Supreme Court Chief Justice William Rehnquist and Associate Justices Clarence Thomas and Sandra Day O'Connor, three of the High Court's more conservative members. But Rehnquist, Thomas and O'Connor were right to dissent from the Court's wrongheaded decision to permit the federal government to prosecute sick people who use marijuana as a painkiller--even in states where voters and legislators have determined that such use is lawful.

The three dissenters are to be applauded for their refusal to be buffaloed by the drug warriors who peddle the fantasy that marijuana should continue to be viewed as a dangerous drug that is unacceptable for any use.

O'Connor's dissent was particularly significant. While she indicated that she would not have voted in favor of the state initiatives or legislative bills that have legalized medical marijuana in Alaska, Colorado, California, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington, the Justice explained that it was wrong for the federal government to seek to undermine "an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently."

O'Connor's dissent is important because it makes clear where distinctions ought to be drawn. Of course, the federal government has a right--indeed, a responsibility--to intervene when the lives and liberties of Americans are threatened by the states, as has been the case when federal authorities have acted to protect the rights of racial minorities, women and people with disabilities. But to intervene with the express intent of denying Americans with serious diseases a generally well-regarded treatment option represents the worst sort of meddling by the federal government.

The Supreme Court's 6-3 ruling suggests that there are few judicial options left for supporters of medical marijuana. But John Walters, the Bush Administration's director of national drug control policy, was wrong when he claimed on Monday that "today's decision marks the end of medical marijuana as a political issue."

The High Court's majority made it clear that federal legislative avenues remain open. Congress has the power to remove all legal barriers to the distribution and use of medical marijuana. While such a bold step may be unlikely in the short term, Congress also has the power to create exemptions for states where voters and legislators have decided to, in the words of California Attorney General Bill Lockyer, respect "the rights of patients to have access to the medicine they need to survive and lead healthier lives."

Noelle Davis, executive director of Austin-based Texans for Medical Marijuana, is right when she says, "This gives the opportunity to Congress to step up and do something."

Will it happen? Representative Ron Paul, R-Texas, a physician who has co-sponsored legislation to allow states to decide without federal involvement whether people can use marijuana with a doctor's approval, says, "I think support is strong, but (members of Congress) are still frightened a little bit by the politics of it. If you had a secret vote in Congress, I'll bet 80 percent would vote for it."

That figure is roughly parallel to the sentiments expressed by Americans in polling with regard to medical marijauna. What's needed now is for citizens to let their members of Congress know that the federal government has no business taking people's medicine away from them.

They can do so by urging support for the States' Rights to Medical Marijuana Act (HR 2087). Sponsored by Representative Barney Frank, D-Massachusetts, it has thirty-six co-sponsors, ranging from conservative Representative Dana Rohrabacher, R-California, to progressives such as Representatives Bernie Sanders, I-Vermont; Tammy Baldwin, D-Wisconsin, and John Conyers, of Michigan, the ranking Democrat on the House Judiciary Committee.

The legislation gets to the heart of the matter addressed by the court, declaring that:

"No provision of the Controlled Substances Act shall prohibit or otherwise restrict--

(A) the prescription or recommendation of marijuana by a physician for medical use,

(B) an individual from obtaining and using marijuana from a prescription or recommendation of marijuana by a physician for medical use by such individual, or

(C) a pharmacy from obtaining and holding marijuana for the prescription or recommendation of marijuana by a physician for medical use under applicable State law

in a State in which marijuana may be prescribed or recommended by a physician for medical use under applicable State law."

Comments (16)

1. If THC is so addictive, why isn't Marinol (synthetic THC) Schedule II instead of Schedule III? The fact that Marinol is available by prescription at all demonstrates how absurd the criminalization of medical marijuana is. I watched a friend of mine waste away from AIDS (yes, even with HAART just last year) and now he'll eat food again, from a combination of taking Marinol and smoking. He's found that the pills have *more* hallucinatory effects than smoking marijuana.

   Posted by cammycam at 06/08/2005 @ 03:58am

2. Although this ruling seems quite unfortunate, I am unsure of what it really means for people in states with these laws. The most obvious is that they will not be able to obtain marijuana legally and will be forced to deal with a slightly more criminal element.

   Before this current administration I would have thought regardless of the ruling the government is not really going to prosecute and incarcerate these people. The last thing the government would want to do is assume responsibility for the medical care of these extremely sick (and costly) people. What build new jails that are essentially cancer wards? But now, I think cancer victums should beware if you think the government does not want to provide free medical care and hospice (behind bars).

   Thankfully this weed will grow just about anywhere.

   Richmond

   Posted by Richmond at 06/08/2005 @ 10:47am

3. The most important thing to remember is that this isn't so much about marijuana, as it is about state rights, and the current administration's tactics to undermine the ability of state governments to rule themselves.

   Obviously marijuana is a hot topic with conservatives. In a way it's not as much of a hot topic with liberals, because the truth is that the black market works rather well. Those who do wish to use marijuana have access to it (with its obvious legal risks).

   The folks who use marijuana medically will continue to find ways to grow or procure pot for their indvidual needs. The vast majority of smokers in the United States work within the criminalized framework.

   From a medical stand point however, it would seem counter intuitive to prescribe any substance where the administration method is smoking. The damage that smoke (any smoke) does to the lungs is a major health hazzard.

   But the real point of this issue is that when a state wishes to differ from the federal gov't. about its laws, the voters of said state have the right to do so. What took place in this ruling, is only the begining of the fed forcing it's will on the states, and thereby giving the people less and less control over their own states, cities, and communities.

   Morally and tactically drug use isn't the easiest thing to fight for really. But defending state rights is because even conservatives (at least some) can see that this is a power grab by the administration, and anyone with any foresight can see that this is truly a *slippery slope* to use neo-con language.

   Users of marijuana know that the toxicity and social damage that marijuana causes is very low compared to ANY of the legal recreational drugs who have extremely powerful lobbies in Washington, lining the pockets of politicians.

   As an avid marijuana user myself, I can not take a stand and say that marijuana is a panacea for cancer patients, or for that matter, that it truly has curative powers.

   However, the reality is that whether the patients feel better because they are getting medical benefits from the substance, or whether they simply feel better because they're stoned, the end result is the same. Sick people feeling better.

   The sick people of the Bush administration sure feel better taking away your rights.

   It's not about smoking pot. It's about the Unites STATES.

   If the neo-cons get their way, this country will end up being called Bushnia.

   Posted by gg5000 at 06/08/2005 @ 7:45pm

4. How can the court claim jurisdiction by invoking interstate commerce? If the medicinal marijuana is crossing state borders, okay; but if there is no interstate traffic (or violation of rights guaranteed by the Constitution), there is no right for the federal government to intervene in the internal affairs of a state.

   Posted by mtspence05 at 06/09/2005 @ 11:51am

5. Interstate commerce is a commonly invoked doctrine for a wide swath of federal legislation. This excerpt from The New Republic clarifies this history somewhat:

   The 6-3 majority opinion in Gonzales v. Raich by Justice John Paul Stevens was an uncontroversial application of Supreme Court decisions that have been settled since the New Deal. In 1942, the Court upheld Congress's power to regulate wheat grown for personal consumption, on the theory that locally consumed wheat might reduce demand for wheat that crossed state lines. By the same logic, Stevens held for the majority, Congress could prohibit the use of marijuana grown for personal medical use, since it, too, might have a substantial effect on the national market for recreational pot.

   Now, in order for a product to be regulated by the federal government as "interstate commerce," it only needs to have some minor relationship to any product that crosses state lines. For instance a law firm with clients only in one state conducts "interstate commerce" if it gets its legal paper from some other state or makes interstate telephone calls.

   The question remains whether such invocation of power is a positive or negative for our society. The effect of this New Deal legislation was to severely limit state power and substantially strengthen the power of the federal government. Now the federal government can clearly establish limits on what states may allow with respect to any number of businesses or activities.

   In a landmark ruling, the interstate commerce doctrine was invoked to prevent a local diner from discriminating against black people because some customers might come from some other states. The "justification" for this ruling was that the federal government wanted to assure that black people were willing to travel as tourists.

   So this Marijuana ruling solidifies the power of the federal government. When the federal government is anti-discrimination, federal power clearly benefits those who would be discriminated against from State discrimination. When the federal government is all Republican, federal power helps conservatives to assert their agenda all across the country, and helps conservatives to snuff out dissenting voices.

   Posted by nattiebumpo at 06/10/2005 @ 7:11pm

6. A correction to the above quote: only the first italicized paragraph comes from The New Republic, while the rest of the comment is my own.

   Posted by nattiebumpo at 06/10/2005 @ 7:12pm

7. Those currently opposed to the medical use of marijuana are quite happily beyond reason. It's precisely like when a two year old says "no". At that point nothing matters to them but childishly sticking to their guns. No amount of data, reasoning or proof will ever sway them. There is an unspoken "la-la-la-I'm-not-listening-to-you-la-la-la" following everything they have to say on the matter.

   It's too bad, but it's true.

   Posted by joji at 06/10/2005 @ 7:15pm

8. John Nichols is uncharacteristically silly to denounce the Supreme Court's decision. The decision is about pot in roughly the same way Marbury v Madison was about city justices of the peace. If the case's reasoning holds, it stops in its tracks the decade's march to limit the federal government's power to do the kind of good things Nicholas must approve. It's also a correct allocation of power --- power to do things rigtly or wrongly, well or badly, that are national in nature. Nichols's quarrel is with Congress, not the Court. He misses the major point yet finds in the majority opinion the nonexistent intent to do harm to sick people. The dissenters in this case stand for the kind of rightwing activism that's involved in the current battle over Federal judgeships in the Senate. Nichols got part of it right: the place to fight the pot battle is in Washington, not the states. John P. MacKenzie, Long Island City, NY

   Posted by johnpmackenzie at 06/11/2005 @ 1:02pm

9. Thanks for the info on interstate commerce. It's specious reasoning by the court. There is not a legitimate market for weed like wheat or other products.

   If a state is allowing violations of a person's rights as guaranteed by the Constitution, then the feds should get involved. This, however, is nothing more than repression and only demonstrates how undemocratic the US really is.

   Posted by mtspence05 at 06/11/2005 @ 2:36pm

10. One wonders why power holders like Ashcroft and Walters never notice that bad law and harsh efforts at enforcement inevitably cause more people to break those laws and find means of evasion. the resultant disrespect for law and enforcers in general, then spreads into all areas of life. Those fools defeat theirselves and never seem to notice.

    Posted by David D. at 06/11/2005 @ 3:52pm

11. One wonders why power holders like Ashcroft and Walters never notice that bad law and harsh efforts at enforcement inevitably cause more people to break those laws and find means of evasion. the resultant disrespect for law and enforcers in general, then spreads into all areas of life.

    Posted by David D. at 06/11/2005 @ 3:52pm

12. It's because they're ideologues, incapable of thinking a problem out rationally. It's like the Christians that don't want abortion (How many people are pro-abortion? I'm just pro-choice.), yet refuse to tolerate sex education, condums or anything other than abstinence. You cannot even keep weed out of federal prisons! Prohibition taught the lessons for anyone open minded enough to learn them. Fanatics, ideologues--they're like dumb animals: Carrots and sticks is all they understand.

    Posted by mtspence05 at 06/12/2005 @ 3:55pm

13. What a country! Religiously outlawing population control has more to do with sustaining predictable levels of ~ poverty than denying women's rights.

    The maintainence of lower and middle class mediocrity, by cutting all free access to high quality educational programming, guarantees evangelists and their prototypes a free reign.

    Posted by antigenerator at 06/15/2005 @ 9:34pm

14. MTSPENCE05:

    You said "It's specious reasoning by the court. There is not a legitimate market for weed like wheat or other products."

    The rationale underlying this argument comes from the "Necessary and Proper" clause of the constitution. Not only can our Federal Government make laws concerning interstate transportation of goods, but our Federal Government can make all laws "necessary and proper" to implementing those original laws governing commerce. Therefore the Federal Govt can not only ban interstate transportation of weed, but it can make subsidiary laws that ensure that transportation of weed across state lines doesn't happen.

    So the Federal Government decides to ban the interstate transportation of weed. The Govt has that power under the interstate commerce clause. And the Govt decides the best way to prevent weed from crossing state lines is making it illegal. The Govt has that power under the necessary and proper clause.

    Of course there is a great question about whether laws are truly "necessary and proper" for effecting other federal powers. But the Supreme Court has basically deferred the answer to that question to the Federal Govt. So they decide.

    This reasoning underlies a lot of good legislation, and also a lot of bad legislation. It restricts the power of states to decide for themselves. Do you want your state to decide what labels go on Prescription Drugs? Do you want each state to be able to make that decision for itself, or is it better for the federal government to decide? Do you want your state to decide what is and is not legal there? Do you want each state to be able to make that decision for itself, or is it better for the federal government to decide?

    The specious argument about markets for marijuana is the same argument that underlies federal criminal prosecution for marijuana users. The argument is that

    Posted by nattiebumpo at 06/17/2005 @ 3:12pm

15. If a state legalizes marijuana for medicinal purposes, regulates it, then the feds have absolutely no business infringing on the state's right to make such laws. There is no market for weed such as wheat, sow bellies, or any other commodity, and to employ the interstate commerce clause is nothing more than a stretch, a specious argument. Are the states that have legalized medicinal marijuana transporting it across state boundaries? No. It is for medicinal consumption in that state. Does the prohibition of marijuana by the feds stop the traffic of weed between states? No. If the feds want to regulate marijuana, okay, maybe; but to override a state's decision and ban herb is an usurpation of authority.

    This decision has nothing to do with "right" or "wrong"; it's nothing more than politics, ideology. You cannot keep weed out of federal prisons! Take all the money wasted on law enforcement, prisons and spend it on programs that work to discourage drug use and help those with a dependency problem.

    Comparing the regulation of prescription drugs to this is apples and oranges.

    Posted by mtspence05 at 06/17/2005 @ 6:20pm

16. MTSPENCE:

    Weed is transported across state lines. There is an interstate market for marijuana, albeit an illegal market. When people produce and consume marijuana in their home state, that affects the interstate market for marijuana, and affects the flow of marijuana across state lines. The federal government has the power to make laws necessary and proper for regulating the interstate market in weed. Banning weed production and consumption for personal use makes it easier for the government to prevent weed from crossing state lines.

    Same goes for prescription drugs. You can't make them at home for your personal use. That is the analogy.

    Nathan

    Posted by nattiebumpo at 06/20/2005 @ 2:32pm