Pubdate: Sat, 11 Jun 2005
Source: Athens Banner-Herald (GA)
Copyright: 2005 Athens Newspapers Inc
Contact:  http://www.onlineathens.com/
Details: http://www.mapinc.org/media/1535
Author: Nick Gillespie
Note: Gillespie is editor in chief of Reason magazine.
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

MEDICAL MARIJUANA RULING EXTENDS REACH OF GOVERNMENT

Plaintiff Diane Monson sits next to her marijuana plants Monday at her
Oroville, Calif., home. Federal authorities may prosecute sick people
whose doctors prescribe marijuana to ease pain, the Supreme Court ruled
June 6 concluding that state laws don't protect users from a federal
ban on the drug.

Monday's Supreme Court ruling against medical marijuana was widely
expected, but that doesn't make it defensible from a legal or moral
perspective.

Writing for the 6-3 majority in Gonzales vs. Raich, the 85-year-old
liberal Justice John Paul Stevens solemnly counseled patients
suffering chronic pain to turn to "the democratic process" for
comfort. "The voices of voters," he mused, may "one day be heard in
the halls of Congress" on behalf of legalizing medical marijuana.

His plea that those who need medical marijuana demand - and wait for -
a change in federal law is weak medicine at best. The simple fact is
that California voters, and voters in several other states, have
already democratically raised their voices in support of allowing the
use of marijuana in controlled situations for medical reasons.

While we consider whether the Republican-controlled Congress will pass
a medical marijuana bill, we can listen to the howls of pain from
people such as Angel Raich and Diane Monson, who brought the case to
the Supreme Court.

They are Californians who suffer from a brain tumor and a degenerative
spinal disease, respectively. Raich and Monson have testified that
marijuana eases pain and helps them function in ways that other drugs
do not. Most medical researchers find that plausible, as did 56
percent of California voters when they approved Proposition 215
legalizing medical marijuana in 1996.

In 2002, however, the Drug Enforcement Administration began to
confiscate the drug from users because marijuana remains illegal under
federal law. Raich and Monson sought an injunction against
confiscation and other enforcement actions.

Now a Supreme Court majority has ruled that state laws allowing
medical marijuana run afoul of the Constitution's "commerce clause,"
which gives the federal government supreme power to "regulate commerce
among the states." Invoking Wickard vs. Filburn, a 1942 case involving
laws governing wheat production, it claims, among other things, that
even small amounts of homegrown pot used for medical purposes might
well make it impossible for federal law enforcement to police the
national market in illegal drugs.

Yet, as Justice Sandra Day O'Connor noted in her dissent, the
government "has not overcome empirical doubt that the number of
Californians engaged in personal cultivation, possession, and use of
medical marijuana, or the amount of marijuana they produce, is enough
to threaten the federal regime." As important, she wrote, it's not
even clear that medical marijuana is commerce as we normally
understand the term.

In a concurring dissent, Justice Clarence Thomas argues flatly that
"if Congress can regulate (medical marijuana) under the commerce
clause, then it can regulate virtually anything - and the federal
government is no longer one of limited and enumerated powers."

This is no small matter. In recent years, the Supreme Court has reeled
in Congress' powers under the commerce clause. The court struck down
the federal Gun-Free School Zones Act, which prohibited the possession
of firearms within 1,000 feet of schools, and the Violence Against
Women Act, which would have allowed victims of sexual crimes to sue in
federal court. Such issues, said the court, were the states'
responsibility and should remain beyond Congress' ever-expanding
grasp. Partly because of such decisions, court watchers started to
talk about a revival of federalism and states' rights as the legacy of
Chief Justice William Rehnquist (Rehnquist joined Thomas and O'Connor
in the Gonzales vs. Raich dissent.)

Indeed, in her opinion, O'Connor stressed that having states
experimenting with state medical marijuana laws "exemplifies the role
of states as laboratories" of democracy. According to the majority,
though, such experiments are forbidden when it comes to medical
marijuana that never leaves California or is never bought or sold.

If the legal reasoning behind the majority is puzzling, the moral
effect is not. Medical marijuana users can now add possible jail time
to their list of problems. As Monson told the media, "I'm going to
have to be prepared to be arrested."

California Attorney General Bill Lockyer claimed that the decision
won't change police priorities, so there was no reason to panic:
"Nothing is different today than it was two days ago." Except, of
course, the legal status of medical marijuana.

Will Monson, Raich or any of California's medical marijuana users be
able to call him for bail money from federal jail?
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MAP posted-by: Richard Lake