Pubdate: Sun, 12 Jun 2005
Source: Republican, The (Springfield, MA)
Copyright: 2005 The Republican
Contact:  http://www.masslive.com/republican/
Details: http://www.mapinc.org/media/3075
Author: Daniel Weintraub
Note: Daniel Weintraub writes for the Sacramento Bee
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

FOUNDATION OF LIBERTY CRUMBLING

Like the old parable about the frog not noticing as it slowly boils in
a pot of water, Americans are losing more and more of their rights
everyday to an overweening federal government, yet we hardly seem to
care. Last week's ruling by the U.S. Supreme Court on California's
medical marijuana law is the latest  example.

The court has been backing the right of Congress to intervene in our
lives for so long now that it's hardly news anymore. States' rights,
while abused to defend the institution of slavery, once were thought
to be the individual's best  defense against the feds. But that
doctrine has long since been rendered ineffective, and it was
worthless in the marijuana case. So as the federal government grows in
size and reach, the question arises: Is there any aspect of our lives
left that Congress cannot regulate? Monday's ruling suggests that the
answer is probably not.

The case involved two California women - Angel McClary Raich of
Oakland and Diane Monson of Butte County - who suffer from serious
illness and use marijuana  to relieve their pain, and who sought an
injunction to stop the federal government from enforcing drug laws
against those who grow, possess or use medical marijuana. They use
their pot under the auspices of California's Compassionate Use Act,
enacted by voters in 1996.

Raich gets her marijuana from caregivers who grow it for her. Monson
grows her own. In 2002, agents from the Drug Enforcement Agency raided
Monson's home and destroyed her six plants.

In its decision, the court did not strike down California's statute,
but upheld the right of U.S. agents to enforce the federal Controlled
Substances Act even on Californians who follow state law.

The court ruling rested largely on the Interstate Commerce Clause of
the Constitution. Although the women were engaged in no commerce and
neither they nor their marijuana was crossing state lines, the court
found that Congress has an interest in regulating intrastate activity
which might indirectly subvert the  federal government's legitimate
right to control interstate commerce. Since it  is impossible to tell
whether marijuana in the possession of an individual was  grown at
home or purchased on the market, the court reasoned, personal use,
even  for medicinal purposes, falls within the federal government's
purview. The 6-3 decision did not come as a surprise to lawyers and
scholars who follow the court, since it tracked closely with decades
of precedent. And even though the court in recent years has dabbled
with the idea of reinvigorating federalism, it hasn't been willing to
follow through on that impulse with any gusto. At least four members
of the current court are considered to be openly hostile to states'
rights and comfortable with an expansive federal government.  The five
others support federalism in different ways at different times and
thus  are difficult to corral into a working majority. The decision in
the marijuana case was written by Justice John Paul Stevens and
supported by Justices Antonin Scalia, Anthony Kennedy, David Souter,
Ruth Bader Ginsberg and Stephen Breyer.

The main dissent was written by Justice Sandra Day O'Connor and joined
by Justice Clarence Thomas and Chief Justice William Rehnquist.
Thomas, in his separate dissent, succinctly summarized the ruling's
import for those who believe Congress and the federal government are
overstepping their  constitutional bounds.

"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." A statement from John
Walters, President Bush's director of national drug policy,
demonstrated Thomas' point perfectly. Walters' paternalistic attitude
toward American citizens fairly dripped off the page. "Smoking illegal
drugs may make some people 'feel better,'" Walters said. "However,
civilized societies and modern-day medical practices differentiate  be
tween inebriation and the safe, supervised delivery of proven medicine
by legitimate doctors."

Unfortunately, too many Americans who would be shocked and offended if
their next-door neighbor said he knew what was best for them acquiesce
when the government, which is really just millions of neighbors acting
in concert, does exactly the same thing.

But if states' rights are dead, perhaps a better and even more
fundamental concept - the sanctity of the individual - can someday
rise in their place. Indeed, the lawyers in the marijuana case say
they plan to return to the 9th U.S. Circuit Court of Appeals and this
time focus on the basic right of individuals to live their lives
without government interference. It's hard to believe that the
founders really meant to give the federal government the power to raid
the home of a sick woman growing an herb for  herself to relieve the
pain from a chronic illness. To say that such enforcement  is within
the realm of regulating interstate commerce may be consistent with the
court's precedents in this part of the law, but it is not consistent
with either  common sense or human dignity.
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MAP posted-by: Richard Lake