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.
If you read the complete text, you'll find that this letter was a response from Madison to a question raised by Cabel.
Cabel was wondering if he could tax imports, not to raise money, but to encourage local manufacturing. In other words, if the commerce clause power to regulate commerce with foreign nations included the power to tax to favor local goods over imports. The exact question:
"It is a simple question under the Constitution of the U. S. whether "the power to regulate trade with foreign nations" as a distinct & substantive item in the enumerated powers, embraces the object of encouraging by duties restrictions and prohibitions the manufactures & products of the Country?"
Madison basically said, sure, everybody else does it, without exception.
I agree with Madison.
YOU would restrict "an herb gifted by God"?? You would regulate God's gift? A simple herb?
Sick children, God's children, could not benefit from God's gift?
Blasphemy! You heartless person, you.
This isn't the first time this has been explained to you, so why are you being so dishonest about it?
Then let's have different speed limits based on a person's ability to drive. Maybe taxing people for the actual services they get? Homes sized for the number of occupants? Number of children based on the ability to raise them?
I bet you'd like your little fascist dictatorship, making exceptions, helping "friends", micromanaging peoples lives.
Sorry. Our system doesn't work that way.
Okay, but you're being just as duplicitous in using the lack of studies to prove your point. When studies don't exist for whatever reason one has to at least listen to anecdotal evidence, and there's a lot more out there for MJ than there is for most of the other quack stuff available at the GNC.
Personally I don't smoke it though I claim the 5th on what I did 25 years ago. I do feel that having completely unenforceable laws such as banning pot only encourages further abuse of the laws and the system. Anyone can grow pot - it's just a weed, for pete's sake. If you couldn't ban alcohol, how do you expect to keep people from growing it?
I guess what I'm *for* is research into medical use of marijuana and/or its consituent elements.
If the medically beneficial ingredients can be isolated, and appropriate dosages identified, that would be wonderful! Simply "smoking" enough off-the-street marijuana until you feel better is, as I believe you've said, pretty sloppy/archaic, and may be dangerous.
In the meantime, I'm still in favor of seeing states allowed to set their own policies regarding the medical use of such a (relatively) powerful drug.
As to this latest Feb. 13th offering -- I don't disagree with Madison. Something very similar was said in The Shreveport Rate Cases years later by Justice Hughes:
"It is of the essence of this (Commerce Clause - rp) power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'"
In this letter, Madison is clarifying his earlier statements about foreign trade. Keep in mind, the Commerce Clause does not define differently regulate with foreign nations and regulate among the several states. Madison is saying that although regulate with foreign nations gives our federal government the power to tax their imports to favor our country, regulate among the several states does not give our federal government the power to tax one state to favor another.
He reminds Cabel that the original intent of the Commerce Clause was to prevent injustice among the States themselves, even though the power could also be used against imports for the general good. I agree.
How do you read this letter, and what do you offer as proof?
I should have asked before. What kind of studies are you talking about? Are you talking about studies using smoked marijuana to relieve some condition?
Just how would that study be conducted? It wouldn't be all that scientific and it would probably be no better than anecdotal information.
C'mon. This isn't science.
I agree. And I would support such a product.
"I'm still in favor of seeing states allowed to set their own policies regarding the medical use of such a (relatively) powerful drug."
On that, I disagree. We do not do that for any other drug. Why start now, and why start with marijuana? That is a Pandora's Box that I do not want to open.
Because that's the only way to make a pro-WOD argument.
Wrong. Wine, beer, and liquor are just different delivery systems for the same drug, whereas marijuana does not deliver the same drug as, say, heroin or meth.
"it's just a weed, for pete's sake. If you couldn't ban alcohol, how do you expect to keep people from growing it?"
"Weed" is an ignorant dysphemism! as are "pot" and "dope."
Some seem to believe that an herb given by God to man and beast alike at the beginning of time and which has grown freely almost everywhere,
including here long before our nation was formed, is permissibly eradicable or controllable by the federal government through powers granted by the
interstate commerce clause of the Constitution. Though, it is an impossible task to devise a logical explanation of how this could be true. In light of
the rest of the Constitution any such perceived mandate dissolves.
"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their
Creator with inherent and inalienable rights; that among these are life, liberty, and the pursuit of
happiness."
Preamble: ...secure the blessings of liberty to ourselves and our posterity...
Amendment V: nor shall (anyone) be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the PEOPLE.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the PEOPLE.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Nowhere in the Constitution is it enumerated what one may put into ones body. Therefore, that right is reserved for the states or the people. However,
since God has already specified in the Bible what one may consume, it is, in fact, the People’s God given right.
Legalizing one part of the WOD will not have the same effect as legalizing all parts of Prohibition.
Oh, and I'd say, "Welcome Back" but that would be a lie.
Oh ... oh, the heartlessness. The inhumanity.
You would regulate God's gift?
Yes, for noncontamination, as is rightly done for many of God's gifts. Respecting God's gifts doesn't imply permitting their fraudulent sale (which is what the sale of contaminated goods is).
Wrong.
So you claim that marijuana does deliver the same drug as heroin or meth?
Legalizing one part of the WOD will not have the same effect as legalizing all parts of Prohibition.
I never said it would. I pointed out the falsity of a statement you made ... and my observation stands unrefuted.
Do you agree that smoking legal and regulated marijuana would be significantly less sloppy, archaic, and dangerous?
As I said, you wouldn't deny "an herb gifted by God", would you? You wouldn't regulate God's gift away from this needy child of God, would you?
Without knowing what the ratio was before Alaskan legalization, that factoid is meaningless.
Nope.
But receiving the appropriate and effective cannabinoids via a pill, patch, injection, mist or suppository would definitely be less sloppy, archaic, and dangerous.
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