Pubdate: Fri, 10 Jun 2005
Source: Salt Lake Tribune (UT)
Copyright: 2005 The Salt Lake Tribune
Contact:  http://www.sltrib.com/
Details: http://www.mapinc.org/media/383
Author: Clarence Page
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

STATES' RIGHTS GET BURNED BY MEDICAL MARIJUANA RULING

WASHINGTON - "When I use a word," Humpty Dumpty said in rather a
scornful tone in Lewis Carroll's Through the Looking Glass, "it means
just what I choose it to mean - neither more nor less." The same
might be said of Supreme Court justices.

Take, for example, Gonzales vs. Raich, the Supreme Court's medicinal
marijuana case.

The commerce clause in Article One of the Constitution could hardly be
more clear in limiting federal power to commerce "among the several
States," not within a state.

But in Gonzales vs. Raich, a 6-to-3 majority has stretched
"commerce" to mean just what they choose it to mean - far enough to
let the faraway feds, not the close-to-the-people state governments,
decide whether their ailing residents should be allowed to grow their
own medicine under a doctor's care.

In the U.S. Senate's heated debate over judicial appointments, we
constantly have heard conservatives argue that judges should lean
toward a modest role for the national government. Over the past
decade, a conservative Supreme Court coalition under Chief Justice
William Rehnquist has rolled back congressional power and elevated
"states' rights" in a series of decisions. Nevertheless, the Supreme
Court reasserted federal authority in Gonzales vs. Raich on Monday,
even in the 11 states that now permit marijuana when recommended by a
doctor.

The people in those states have spoken, and the Supreme Court has told
them to shut up.

Justice John Paul Stevens' majority opinion stretched the meaning of
"commerce" to include anything done in one state that could have "a
substantial effect on interstate commerce." And how does the court
define "substantial"? Broadly enough to cover just about anything.

"[P]roduction of the commodity meant for home consumption, be it
wheat or marijuana, has a substantial effect on supply and demand in
the national market for that commodity," Justice Stevens wrote.

Justice Antonin Scalia, the archest of the high court's
arch-conservatives, chimed in, if only to say that Stevens' federal
intrusionism did not go far enough. "Drugs like marijuana are
fungible commodities"; even when "grown at home and possessed for
personal use," marijuana is "never more than an instant from the
interstate market."

Both opinions sound more like economic theory than day-to-day reality.
After all, the medical marijuana market is only a fraction of a
state's overall drug traffic. How much impact can it have on the
overall illegal multi-billion-dollar industry?

That very rational point, among others, was made by Justice Clarence
Thomas, who cut himself loose from his usual tether to Scalia's world
views to raise a clear, compelling and badly needed voice of reason:
If the two California women who are the defendants
in this case are involved in "interstate commerce," he asked, what
in these United States is not "interstate commerce?"

"Respondents Diane Monson and Angel Raich use marijuana that has
never been bought or sold, that has never crossed state lines, and
that has had no demonstrable effect on the national market for
marijuana," Thomas wrote. "If Congress can regulate this under the
Commerce Clause, then it can regulate virtually anything - and the
federal government is no longer one of limited and enumerated powers."

In other words, keep your federal hands out of matters that pertain
only to a particular state and do not infringe on fundamental human
rights.

That human-rights point is particularly significant to those
African-Americans who are old enough to remember when "states' rights"
was offered as a lame excuse to perpetuate racial segregation laws in
the South. The 1954 Brown vs. Board of Education Supreme Court
decision properly overruled states' rights that violate fundamental
human rights. By contrast, Gonzales vs. Raich ironically overrules
states' rights in order to violate a humane right, the right of the
sick to treat their own illness. "Our federalist system, properly
understood, allows California and a growing number of other states to
decide for themselves how to safeguard the health and welfare of their
citizens," Thomas writes. Right on.

The good news in Gonzales vs. Raich is that the high court did not
overturn any of the existing state medicinal marijuana laws. Stevens'
decision also ruled in defiance of Congress and John P. Walters,
director of the White House Office of National Drug Control Policy,
that marijuana does indeed have "therapeutic value." Stevens suggested
that the executive branch might reclassify marijuana for medical
purposes or that Congress might allow "the laboratory of the states"
to decide this matter for themselves.

In fact, Congress is considering two bills, backed mostly by Democrats
and libertarian-leaning Republicans, that could legalize the medicinal
use of marijuana at the federal level.

Congress usually kicks such hot-burning issues as marijuana reform
over to the courts. This time, the courts have kicked it right back.
Congress, as W.C. Fields once said, needs to take the bull by the tail
and face the situation. And the public needs to make itself heard. 
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MAP posted-by: Richard Lake