Pubdate: Wed, 08 Jun 2005
Source: Denver Post (CO)
Copyright: 2005 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Al Knight, Denver Post Columnist
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Bookmark: http://www.mapinc.org/opinion.htm (Opinion)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)

TENTH AMENDMENT INTACT AFTER POT RULING

The Hemp Evolution website (hempevolution.org) is in red- alert mode
in the wake of the U.S. Supreme Court's decision Monday upholding the
right of the federal government to prosecute users of medicinal marijuana.

"The Supreme Court rules against the sick," is one of the milder
headlines on just one of the Internet websites dedicated to promoting
the wondrous benefits to be obtained by smoking marijuana.

A close reading of some of the latest mainstream media dispatches
indicates that users of medicinal marijuana, now permitted in 10
states including Colorado, don't really have much to fear from the
court's decision. Authorities in all of these states have rushed to
the camera to announce that they have no intention of sending out
search parties to find small stashes of marijuana.

Indeed, the five-justice majority opinion written by Justice John Paul
Stevens virtually sides with those who think state authorities should
now ignore the court's ruling. Stevens writes:

"This case is made difficult by respondents' strong arguments that
they will suffer irreparable harm because, despite a congressional
finding to the contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not whether it is wise
to enforce the statute in these circumstances; rather it is whether
Congress' power to regulate interstate markets for medicinal
substances encompasses the portions of those markets that are supplied
with drugs produced and consumed locally. Well-settled law controls
our answer."

That passage suggests that if state and federal authorities wish to
look the other way at future violations, it will be OK with the court.

It is also interesting that Clarence Thomas, who dissented from the
decision, has suddenly become the darling of the pro-marijuana crowd.
Thomas said that if the federal government can regulate home-grown
medicinal marijuana, it can regulate "quilting bees, clothes sales,
and potluck suppers."

Those planning a potluck supper need not panic. Nor is it likely that
Congress will do what the pro-marijuana lobby would like it to do,
which is carve out a medical exception to the drug laws.

The reason for this congressional reluctance is not hard to determine.
The fact is, as Justice Antonin Scalia pointed out in a concurring
opinion Monday, it's hard to tell the difference between marijuana
intended for intrastate use from that intended for interstate use.

"Not only is it impossible to distinguish 'controlled substances
manufactured and distributed intrastate' from 'controlled substances
manufactured and distributed interstate' but it hardly makes sense to
speak in such terms," he said. "As the court explains, marijuana that
is grown at home and possessed for personal use is never more than an
instant from the interstate market and this is so whether or not the
possession is for medicinal use or lawful use under the laws of a
particular state."

Critics of the majority decision have decried the fact that the court
has again turned its back on the Tenth Amendment to the Constitution,
which reserves powers not delegated to the federal government to the
states and its people. But in jumping to the conclusion that the Tenth
Amendment is officially dead, they must ignore the impact of a number
of prior Supreme Court cases that ultimately controlled the outcome in
this case.

The most important one of these involved a wheat farmer's attempt to
duck federal crop regulations by arguing that his wheat was being
grown only for family or onsite consumption. The Supreme Court in that
case ruled against the farmer and said the wheat wasn't exempt from
federal regulation.

Thus, the proper response to Monday's decision is to again ask
Congress if it wishes to make a medical exception to its drug laws. If
it doesn't - and keep in mind that responsible medical organizations
oppose the exception - then the next step in this chapter of history
will almost certainly be an abuse of medicinal marijuana serious
enough to warrant prosecution.

In the meantime, the Tenth Amendment is probably no worse off than it
was before. 
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MAP posted-by: Richard Lake