Pubdate: Sun, 12 Jun 2005
Source: Daily Press (Newport News,VA)
Copyright: 2005 The Daily Press
Contact:  http://www.dailypress.com
Details: http://www.mapinc.org/media/585
Author: Clarence Page
Note: Page is a columnist with the Chicago Tribune
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

COURT BURNED MEDICAL POT

"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 debate over judicial appointments, we constantly
have heard conservatives argue that judges should lean toward a modest
role for the 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 last week, 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 could cover just about anything.

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, 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?"

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
African-Americans like Thomas and me. We happen to be 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 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.

The good news in Gonzales vs. Raich is that the high court did not
overturn any of the existing state medicinal marijuana laws.

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 currently 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.
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MAP posted-by: Richard Lake