Pubdate: Tue, 15 May 2001
Source: San Francisco Chronicle (CA)
Copyright: 2001 San Francisco Chronicle
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Debra J. Saunders
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)

BIG BENCH BACKS MIGHT OVER RIGHT

Those of you who cheered last year when federal agents stormed the home of 
the American Gonzalez family to spirit away young Elian -- because the 
Gonzalezes shouldn't be allowed to flout the law -- should love the U.S. 
Supreme Court ruling against medical marijuana and the Oakland Cannabis 
Buyers' Cooperative.

Oops, I forgot. We in the Bay Area can flout the law because we're better 
than other people.

And in this case (as with Elian, I would argue), voters at least flouted 
the law within a legal framework and for a good cause.

Even Candidate George W. Bush, who said he opposed medical marijuana, said 
he supported states' rights to pass medical marijuana laws. Hope he doesn't 
change his position now -- the White House was cagey when asked if he had 
- -- because if he does, armed federal agents could be sweeping into your 
town soon.

Go back to 1996, when 56 percent of state voters approved Proposition 215, 
which legalized cannabis clubs for people with notes from their doctors. 
Fact is, while the pro-215 campaign banked on stories of very sick people 
whose pain was eased by pot, some backers and clubs used the law to shield 
their recreational use. They don't get points for honesty. Or legal 
scholarship. (They knew they were defying federal law. They still know it, 
yet argue that Monday's decision will have no effect on state laws that 
allow residents to grow their own.)

Meanwhile, people with cancer, glaucoma and AIDS were able to take a drug 
that eased their very real pain. That made the fight worthwhile.

Prop. 215 lawyers argued that the sick's "medical necessity" overrode 
federal law. Lower courts agreed and disagreed. On the one hand, Congress 
classified marijuana as a Schedule 1 drug, the toughest category under the 
Controlled Substances Act. There is no exemption for states that don't like 
the law.

Justice Clarence Thomas wrote that "medical necessity" did not override 
federal authority. The only allowable use of marijuana then, he wrote, 
entails government research projects. He also noted -- correctly -- that 
courts are not supposed to write laws. He quoted a 1980 decision that 
noted, "we are 'construing an act of Congress, not drafting it.' " He 
carried the court 8-0.

So what of the eight states that passed medical marijuana laws? Eric 
Sterling of the Criminal Justice Policy Foundation hopes those states' 
members of Congress will take heart. "If I were a senator," said Sterling, 
"I'd say I'm going to support the voters of my state. They had a pretty 
good idea here."

Meanwhile, Bush has to decide just how far the Department of Justice should 
go now that it can go all the way. Federal might or states' rights?

Living in Ukiah, former U.S. Rep. Dan Hamburg began growing marijuana to 
ease the pain of his mother, who died of breast cancer this spring. He 
noted that there are pot clubs across the country. He wonders if federal 
agents will storm every club in America? "Are they going to close down the 
one in Ukiah?" And: "I think there will be a lot of anger on the part of 
voters if the feds come in and try to supersede state and local law."

Washington should change the Controlled Substances Act. Until that day, 
Bush should not enforce the court decision, and respect his long-standing 
support of states' rights to handle issues their own way.
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MAP posted-by: Terry Liittschwager