Pubdate: Thu, 02 Dec 2004
Source: Cavalier Daily (U of VA Edu)
Copyright: 2004 The Cavalier Daily, Inc.
Author: Sina Kian, Cavalier Daily Columnist
Cited: Raich v. Ashcroft
Bookmark: (Cannabis - Medicinal)
Bookmark: (Angel Raich)


THIS WEEK, several classmates from my Separation of Powers class and I
were privileged to have witnessed the much anticipated Supreme Court
case on medicinal marijuana, Ashcroft v. Raich. After many frustrating
delays, we finally reached the steps of the Marble Temple, and were
soon escorted into the courtroom itself, where we sat in awe,
surrounded by the sublime spirit of one of the most influential rooms
in U.S history.

The facts of the case quickly unveil it to be perhaps the most ironic
and perplexing case this session: Attorney General John Ashcroft,
sworn upholder of states' rights, invoked the federal Controlled
Substances Act (CSA) of 1970 to supersede California's Compassionate
Use Act of 1996 and arrest Angel Raich, an extremely ill woman who
medicates with medicinal marijuana several times a day. This
contradicting move by Ashcroft puts the justices in an awkward
position, forcing them to choose between states' rights and social
liberalism, or federal power and social conservatism, depending on
their individual predispositions. Specifically, if they vote for
Raich, they will allow medicinal marijuana while upholding a state's
prerogative to socially experiment, and if they vote for Ashcroft,
they will ban medicinal marijuana yet noticeably aggrandize Congress'
commerce clause powers.

Ashcroft claims that this use of federal power is constitutional
according to the "aggregate principle" established in Wickard v.
Filburn. In this case, it was ruled that farmers who did not sell
their wheat on the interstate market could still be regulated because
they replaced their demand for interstate goods with their own
home-grown wheat.

The Court proceeded to assert that in aggregate, the actions of these
farmers would have a "substantial effect" on interstate commerce.

Ashcroft draws the parallel, saying that while Angel Raich does not
buy, sell or trade on any market, she is replacing her demand and thus
the actions of those situated analogously to her would have an effect
on interstate commerce, at least in aggregate.

Both sides of the case can easily be argued within the context of
commerce clause history.

Allowing Congress to have such far-reaching powers is just as
ridiculous as disallowing Congress from being able to carrying out the
legislative needs of our nation.Justice Antonin Scalia has on many
occasions referred to Wickard as "laughable" because of the long
causal chain necessary in order to link a farmer's actions to
interstate commerce.Nonetheless, in the Courtroom, Scalia seemed to
heavily favor Ashcroft's position, and had seemed to work out a
personal compromise in which he could continue to denounce Wickard
while ironically applying it to this case. In other words, the
commerce clause argument is just as plausible one way as it is the

While the constitutional question was the extent of the commerce
clause (rightfully so), the vagueness of the principle should force
the Court to take a functionalist approach.

Since the commerce clause power could easily go either way, the Court
should judge Ashcroft's actions by their immediate results.

While the legal implications of a commerce clause precedent can
presume volumes of space, there are more simple consequences that we
should not forget. One purpose of our law, vaguely, is to establish a
consistent set of rules in which our democracy can work, and in which
individual rights are preserved so long as they do not violate the
rights of others or undermine the betterment of society.

This purpose would be abandoned if Ashcroft wins because California's
right to legalize medicinal cannabis for its citizens would be
violated in the name of an arbitrary application of the CSA (arbitrary
because the Congress who passed the CSA never considered medicinal
marijuana). But even more specifically, if Ashcroft wins, Raich's
doctor asserted that Raich would either have to leave the country or
face "rapid and painful death." Temporarily forgetting abstract
constitutional principles, the idea of an American citizen being
forced to emigrate in order to find a nation where promises of "life,
liberty, and the pursuit of happiness" are more than just words is a
discomforting and melancholy thought.

Although Justice Thomas indicated otherwise by falling into his usual
slumber from time to time during the case, the Supreme Court now faces
a grave decision: give her liberty, or give her death.
- ---
MAP posted-by: Richard Lake