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Medical marijuana: The real stakes
TownHall.com ^ | 12-10-04 | Jeff Jacoby

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.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; US: California
KEYWORDS: aclulist; billofrights; california; communistsubversion; conspiracy; constitutionlist; federalism; govwatch; jacoby; libertarians; marijuana; medical; medicalmarijuana; noteworthy; nwo; philosophytime; pufflist; real; scotuslist; stakes; the; wodlist
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To: robertpaulsen
The arguments are mainly against "smoked" marijuana for medical purposes.

If it works, is controlled and prescribed by a doctor, it wouldn't matter to me if they smoke it, inject it or by what means it eventually reaches the blood stream.

I find it an illogical premise that this whole desire for medical use of marijuana is just a way to open the gates for a bunch of dope smokers.

21 posted on 12/17/2004 10:46:20 AM PST by evad (DUmmie FUnnies and Pookie Toons-the start of a nice day)
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To: robertpaulsen
To reduce the intraocular pressure caused by glaucoma, it would require smoking 10 joints/day, every day

OK Ok RP - please produce your reference to this interesting little pharmacology factoid.

Or did you just invent this to support your totalitarian bent?

22 posted on 12/17/2004 10:47:08 AM PST by corkoman (Logged in - have you?)
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To: inquest
If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.

If the government's argument that there can be no "as applied challenge" to commerce clause legislation prevails, it may be the last one.

23 posted on 12/17/2004 10:47:35 AM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: robertpaulsen
No major medical association supports smoked marijuana for medical reasons. None.

Heh. Follow the money.

24 posted on 12/17/2004 10:53:58 AM PST by gdani
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To: NJ_gent
The Commerce Clause says nothing about "interstate" or "intrastate". It says, "... among the several states."

This has been interpreted as commerce from the point of origin within the state to its final destination within another. It does not, however, give Congress the power to regulate commerce that is entirely within one state.

BUT, if Congress IS regulating interstate commerce and some intrastate activity "substantially effects" Congress' interstate regulatory efforts, the Necessary and Proper Clause gives Congress the power to write laws covering that particular intrastate activity.

Think about it. Do you believe the Founding Fathers would give Congress the power to regulate interstate commerce, yet allow the individual states to undermine and subvert their regulatory efforts? Why give Congress the power to begin with?

As many a court have said, "this is not our domain". This is between the people and their elected representatives.

And I agree. If the people don't like the drug laws, don't like what Congress is doing with their authority, it is up to the people to remedy that, not the courts.

25 posted on 12/17/2004 10:54:52 AM PST by robertpaulsen
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To: robertpaulsen
The 21st amendment reversed the 18th amendment. What amendment would your suggested amendment be repealing?
Seriously, are you suggesting that we pass an amendment removing a power of the (federal) govt. when that power isn't even enumerated in the first place? Have you any idea how dangerous of a precedent that would be?
26 posted on 12/17/2004 10:57:58 AM PST by Durus
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To: inquest
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."

If he used to laugh at Wickard, presumably that was because it was so ridiculous and unbelieveable a decision. "...but that's what Wickard says"???!!! So bleeding what - is Scalia a robot? He is in exactly the perfect position to do something about it, which none of us can - he's on the Supreme Court, for crying out loud. He's not bound by precedent - if he was, then the Court could never have overruled Plessey v. Fergusen with Brown v. Board, and segregation would still be the law of the land. The Court is constantly interpreting the law, and finding that old decisions are either incorrect or inapplicable. What makes this case any different?

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.

I couldn't agree more. This case is perhaps the single most important case that most of us will ever see, not because of the marijuana/War on Drugs issue (the MJ is merely a vehicle for deciding the larger issue), but because this will determine, for decades or longer into the future, what the role of the fed.gov will be vs. that of the states. Is it to be the Lord and Master, dictating to the states and people because of its outrageously expanded Commerce Clause powers, or is it to return to its traditional and intended role as a regulator of INTERSTATE commerce? We all are waiting and watching.

27 posted on 12/17/2004 10:58:15 AM PST by Ancesthntr
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To: TKDietz
If a state wants to allow something and has narrowly tailored state laws that discourage interstate commerce in thing or activity, then those laws are relevant in the determination of whether the activity involves interstate commerce.

I don't see how. All you have to do is examine the activity in question, and inquire whether regulation of that activity is within the constitutional purview of the federal government. Anything else just unnecessarily muddies the issue.

28 posted on 12/17/2004 10:58:29 AM PST by inquest (Now is the time to remove the leftist influence from the GOP. "Unity" can wait.)
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To: inquest
This thread is bound to......


29 posted on 12/17/2004 10:59:39 AM PST by Protagoras (Christmas is not a secular holiday)
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To: inquest
The illegalization of marijuana occurred in 1937 when the tortured soul of Harry J. Anslinger lobbied for its outlaw via the Marijuana Tax Stamp Act.

Driven primarily by racial fears, this piece of shit managed to outlaw a mostly benign natural psychoactive plant.

The following are excerpts of Mr. Anslinger's testimony before a Senate hearing on marijuana in 1937:

"There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others."

"...the primary reason to outlaw marijuana is its effect on the degenerate races."

"Marijuana is an addictive drug which produces in its users insanity, criminality, and death."

"You smoke a joint and you're likely to kill your brother."

"Marijuana is the most violence-causing drug in the history of mankind."

Reference: http://www.heartbone.com/no_thugs/hja.htm


I don't want to get into A Free Republic shootout about whether marijuana is evil or benign. It is just important to know where all this crap starts and what starts it.

By the way, if you have a Marijuana Tax Stamp you can legally grow it. Except if you have one, the Feds arrest you for it. How's that for a Catch 22?
30 posted on 12/17/2004 11:02:29 AM PST by Beckwith (John, you said I was going to be the First Lady, as of now, you're on the couch . . .)
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To: Aegedius
"then there would have been no need for the 18th amendment"

There was no need for the 18th. The temperance reformers thought it would be harder to overturn than a federal statute.

Once the 18th was passed, the 21st was necessary to repeal it. Read Section 2 of the 21st amendment -- it turns the legalization power over to the states from the federal government.

31 posted on 12/17/2004 11:03:11 AM PST by robertpaulsen
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To: Phantom Lord
MJ should be legal.

Amen. To the hypocrites WOD supporters who think otherwise, then at least be consistent with your fascism and outlaw alcohol, cigarettes and caffeine. I don't argue the case anymore because talking with WOD supporters is like reasoning w/ Rats; name calling and false "facts" is all they can come up with, not logic.

32 posted on 12/17/2004 11:03:28 AM PST by Indie (Ignorance of the truth is no excuse for stupidity.)
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To: robertpaulsen
Do you believe the Founding Fathers would give Congress the power to regulate interstate commerce, yet allow the individual states to undermine and subvert their regulatory efforts?

If you're going to take an originalist approach to the issue, it's abundantly clear that that power was listed in the Constitution so as to take it away from the states, not to give Congress any new powers. There isn't a scintilla of evidence from the writings of either federalists or anti-federalists at the time that the purpose of the clause was to give the federal government any restrictive power over actual commercial transactions within the country. And accordingly Congress never tried to exercise such a power until 100 years after the Constitution went into effect.

33 posted on 12/17/2004 11:04:33 AM PST by inquest (Now is the time to remove the leftist influence from the GOP. "Unity" can wait.)
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To: robertpaulsen
ROTFLMAO,,,,you stiil trying to peddle that BS?

PS, no one buys it.

34 posted on 12/17/2004 11:05:22 AM PST by Protagoras (Christmas is not a secular holiday)
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To: bassmaner
"and leave regulation up to the states like it is for alcohol and tobacco."

Fine. Pass an amendment similar in wording to the 21st which, in Section 2, turned the alcohol legalization decision over to the states.

35 posted on 12/17/2004 11:06:56 AM PST by robertpaulsen
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To: robertpaulsen
Even during Prohibition, it was legal to produce a small amount of liquor, wine or beer for one's own consumption.

If the fascists at the DEA took the same approach to marijuana, one could grow five or six plants a year for personal consumption.

It would dramatically reduce drug dealing and a whole crapload of associated problems.

If a person could grow their own, they would never meet a dealer who would want them to buy crank, smack, crack and all the other bad stuff in the marketplace.
36 posted on 12/17/2004 11:08:11 AM PST by Beckwith (John, you said I was going to be the First Lady, as of now, you're on the couch . . .)
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To: robertpaulsen
Even during Prohibition, it was legal to produce a small amount of liquor, wine or beer for one's own consumption.

If the fascists at the DEA took the same approach to marijuana, one could grow five or six plants a year for personal consumption.

It would dramatically reduce drug dealing and a whole crapload of associated problems.

If a person could grow their own, they would never meet a dealer who would want them to buy crank, smack, crack and all the other bad stuff in the marketplace.
37 posted on 12/17/2004 11:08:39 AM PST by Beckwith (John, you said I was going to be the First Lady, as of now, you're on the couch . . .)
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To: Beckwith

Soory, I stutter . . .


38 posted on 12/17/2004 11:09:00 AM PST by Beckwith (John, you said I was going to be the First Lady, as of now, you're on the couch . . .)
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To: inquest
Oh... got to this one late. Well it's never to late to post my standard response to the Marijuana threads:

Uh, oh... I can feel the inrush of Freeper pot-heads flocking here to post their "Legalize Marijuana NOW!!!" rants. It's not a good feeling...

39 posted on 12/17/2004 11:10:03 AM PST by 69ConvertibleFirebird (Never argue with an idiot. They drag you down to their level, then beat you with experience.)
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To: evad
I find it an illogical premise that this whole desire for medical use of marijuana is just a way to open the gates for a bunch of dope smokers.

Perhaps you should do your homework and read up on Soros and his quest for total drug legalization and how he is using the medical marijuana scam as the "camel's nose under the tent" toward total drug legalization.

40 posted on 12/17/2004 11:12:31 AM PST by WildTurkey
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