Posted on 12/17/2004 9:12:14 AM PST by inquest
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.
The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with an awful array of diseases, including tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was again able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.
But under the federal Controlled Substances Act of 1970, the possession of marijuana for any reason is illegal. The question for the court is which law should prevail in this case: state or federal?
Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Does Congress have the right to criminalize the possession of minuscule amounts of marijuana, not bought on the illicit drug market, and used as medicine?
Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?
According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.
The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, for his family, some he fed to his livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?
But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.
Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, in fact, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.
But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
But how does one do research on a banned substance? From what I understand, it's extremely difficult to get a permit or a grant to conduct such a study.
I believe the prohibition on marijuana is working -- keep in mind that marijuana has been illegal now for what, almost 70 years? And I don't see and end to it, do you?
Alcohol prohibition, on the other hand, lasted a mere 13 years before it was overturned.
One other thing. People are calling for the legalization of one drug, marijuana, and expecting big results. Imagine if, during Prohibition, only wine was made legal. Would you expect big results by legalizing just wine?
Uh, the alcohol in wine is chemically the same as the alcohol in beer, whisky, grain alcohol, etc. Try again!
Ah, you just have to look for it.
Number one, if marijuana were made legal for medical purposes on a state-by-state basis, legal medical marijuana interstate commerce would soon spring into existence (surely if it's legal in State A and State B you wouldn't stop them from shipping to each other -- that's silly).
Number two, a patient who smokes medical marijuana for their condition does not purchase legal products for their condition (which are interstate commerce). This is almost identical to the Filburn case, and why I believe the USSC will overturn the Ninth Circuit (yet again).
One last thing. Raich was decided by the Ninth Circuit, the most overturned Circuit Court in the country. Her case was heard by only three judges of the Ninth, one of whom dissented on Filburn grounds! (The Ninth circuit refused to hear the case en banc.) This is not a real strong case.
Are you saying that the Founding Fathers grew this plant so they could sit around and smoke dope?
If you're not saying that, then what you have to say is irrelevant.
But that didn't stop you from piping in about "hypocrites WOD supporters" who should be "consistent with your fascism and outlaw alcohol, cigarettes and caffeine".
YOU'VE expanded the matter at hand, so deal with it. YOU'VE changed the subject, but now you're backpedalling.
I'll ask you again. If you favor the legalization of marijuana because the fascist government has no right to be involved, then YOU need to be consistent and call for the legalization of ALL drugs. That is, unless it's okay for the fascist government to ban everything BUT marijuana -- talk about a hypocrite!
Furthermore, if the fascist government has no right to regulate drugs (which harm no one but the user -- right my little libertarian anarchist?), then surely the government has no business regulating pornography, gambling, prostitution, etc.
C'mon. Take a stand! Grow a pair and speak your mind!
You disgust me! You are more concerned with the founding fathers intent in growing a gift from God than you are in their intent in the wording of the Constitution. Relevance is assured for the God given rights of individuals despite all your fascist dictates to the contrary.
I'll give you that.
And if this were really about medical marijuana, and helping patients, and easing suffering, the major pro-medical marijuana groups (like NORML, the Marijuana Policy Project, the Drug Policy Alliance, etc.) would be investing their money, time, and efforts to pressure the federal government to make this kind of research possible.
Unfortunately, medical marijuana is a scam. It's a ruse to get marijuana legalized, and these Soros-sponsored groups are using the sick and dying as pawns.*
These groups do NOT want to see medical marijuana in the form of a pill, patch, injection, mist, or suppository. And if medical marijuana took that form? Why they would then call smoked marijuana the "poor man's" medicine for those who can't afford the FDA-approved form.
Geez, the pharmaceuticals know this. You don't get to be a multi-billion dollar company by being stupid. Look at Marinol for nausea -- listen to the objections on this board (acts too slow, too expensive, hard to adjust, whine whine whine).
So a pharmaceutical is going to spend $100 million to come out with say, a marijuana patch to control nausea, when 1) there are already 10 FDA approved products out there that do the job faster and cheaper. and 2) have their customer base use this research as a tool to promote smoked marijuana for nausea? I doubt it.
*"In 1979, the director of NORML, told an Emory University audience that they would be using the issue of medicinal marijuana as a "red herring" to give marijuana a good name."
Nobody need purchase a thing.
There is no commerce involved.
A plant, an herb is grown from seed.
God given herb is consumed by
a soveriegn individual in their own home.
What enumerated power exists
to deny this right to individuals?
If you're going to compare the benefits of ending alcohol Prohibition to ending drug prohibition, then you have legalize all drugs.
Legalizing just marijuana is equivalent to legalizing just wine during Prohibition.
"These groups do NOT want to see medical marijuana in the form of a pill, patch, injection, mist, or suppository"
Why must a God given healing herb be altered in some commercial venture before it is consumed? Answer: to make it commerce and thereby controllable.
And those who favor smoked marijuana for medical purposes don't understand how dangerous that can be.
Were you on chemotherapy for your cancer? Did your oncologist explain that chemo compromises the immune ststem, and you were susceptible to infection? (While on chemo, my brother-in-law stubbed his toe, it became infected, and they had to amputate to stop the rapid progression.)
Did you know that marijuana may be contaminated with salmonella bacteria which gives diarrhea and with a fungus, aspergillus, which may cause severe bronchopneumonia? Bad enough for a healthy person -- lethal for those on chemo.
Do you still believe that people on chemo "would benefit greatly from MJ"?
Trust me. I'm not the least bit concerned with the Founding Fathers growing anything. YOU brought it up.
If they were growing it for hemp, what's your point? If they were growing it to smoke it and get high, I'd like to see some proof.
Otherwise, go away.
"Legalizing just marijuana is equivalent to legalizing just wine during Prohibition."
Wine was still legal as a sacrament during prohibition.
Moreover, grapes were not illegal to grow.
But, I'd liken it to how grape juice remained legal.
So in other words you diametrically disagree with Madison. That's fine, if that's your opinion, but I'd advise from now on not invoking the Founders in support of your opinion.
"If they were growing it for hemp, what's your point? If they were growing it to smoke it and get high, I'd like to see some proof."
Intent is irrelevant. It is an herb! Prove the enumerated power exists to eradicate an herb gifted by God!
Of course, if the person dies because they smoked your harmless plant, you can always say it was "God's Will". Right, my Bible-quoting friend?
You smoke, boil, or chew what you want. Me? I'm goin' with Merck & Co.
"marijuana may be contaminated ...Do you still believe that people on chemo "would benefit greatly from MJ"?"
Perhaps the ill would benefit from a clean regulated and legal growing environment.
Your chemist buddies have almost killed me three times now.
I will stick with my Lord and savior. You can stick with the beast
to which you surrender your sovereignty.
You must have won the dance contest as a kid.
It's amazing how far you will go to avoid admitting what you believe and who you are. You just can't bring yourself to answer honestly.
Get rid of the nanny state first
If ever there was a safe rock for a coward to hide behind, it's that one. Not to mention, it has nothing to do with what I asked.
I would be willing to outlaw all substances and submit to anything any government wanted to do to me, as soon as you start flapping your arms and fly to Mars under your own power. LOL
then I'm willing to discuss the legalization of drugs
Then you are willing to discuss it? LOL
More childish BS. And it still didn't address my question, which had to do with your opinion, not a law.
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