Medical marijuana: The real stakes

TownHall.com ^ | 12-10-04 | Jeff Jacoby

[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.

[William Terrell]

Yeah, 535 members of Congress must vote in the majority, The President must sign it, and the legislation must survive a Supreme Court challenge.

Yes, that is what has been happening. Remember Campaign Finance?

I gave you the link in my post # 327 which refutes your "the commerce clause was meant to encourage commerce" fallacy.

A ruling from a judge on the United States District Court for Massachusetts. I seem to remember that federal district courts rulings effect only their districts, since in 1808 there weren't any federal appellate courts and the current appellate courts' rulings effect their defined areas.

I seriously doubt that judge would have ruled the same on liquor or firearms.

"Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures"

I respectfully disagree with the good judge. The power still exists in the legislatures, for the states have the power to ban a trade and prohibit articles from entering. The original purpose as stated by the framers is not mocked.

So, by Judge Davis' own logic, if the states retain the power, the federal government doesn't have that part of it.

I'd have to read the United States v. The William, there being a number of ellipses dividing the salient parts of the judge's ruling, I'm not sure I trust USAToday's links, (the paper is a piece of liberal trash), to find any more questionable points.

Do you have reference to any other district courts' rulings on the issue?

[robertpaulsen]

"without a better argument than you've been able to come up with so far."

I saved my best argument for last -- the English language. The following is the Madison quote to which you're constantly referring:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

Note the word "rather". "Rather" implies a choice -- Which would you rather do, A or B?

Now, I could agree with your argument if the quote were modified to read:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

You need to find some cite where it states that its not allowed. Until then, Madison's statement does not support your contention.

[tacticalogic]

You'll have to do better than that.

If I say the intended purpose of a claw hammer is to pound nails, rather than to remove rusty mufflers there is indeed an implied choice, but there is only one choice that is consistent with the intended purpose of the hammer. Once again, you are arguing that original intent is irrelevant.

[robertpaulsen]

"A ruling from a judge on the United States District Court for Massachusetts."

Hmmmm. Went right over your head that this was a ruling against Thomas Jefferson, in 1808, the author of the Declaration of Independence, who was there when the Constitution was written?

Wouldn't you think that Jefferson, or even Madison (his Secretary of State), would have said something like, "Hey, that's not what we meant when we wrote the Commerce Clause!"

You have some quote, some cite, from any of the Founding Fathers who may have spoken out against Judge Davis' interpretation of the Commerce Clause?

"Do you have reference to any other district courts' rulings on the issue?"

Your turn. You find a ruling that supports your contention.

[tacticalogic]

"Hey, that's not what we meant when we wrote the Commerce Clause!"

Apparently it has, and continues to go "over your head", repeatedly, that Madison said exactly that in his letter to Cabell, which post dates this case.

[robertpaulsen]

Are you saying that I cannot use a hammer to remove a rusty muffler? That it is not allowed?

Or are you saying that I may, though that's not what it was designed to do?

And if I find a hundred other uses for a hammer, it kind of makes the original intent of the hammer rather irrelevant, doesn't it?

I'd be willing to bet that aspirin is being used more today to prevent heart attacks than its original intent to cure headaches.

Just how important is "original intent" when there are so many allowable interpretations and uses of it?

[robertpaulsen]

"that Madison said exactly that in his letter to Cabell, which post dates this case."

BWAHAHAHAHA!

Yeah. Postdates it by 20 years and never references the case!

[tacticalogic]

And if I find a hundred other uses for a hammer, it kind of makes the original intent of the hammer rather irrelevant, doesn't it?

No, it doesn't. But please keep right on asserting that it does. It cuts through the bullshit and gets right to the core of your arguments.

[tacticalogic]

Yeah. Postdates it by 20 years and never references the case!

And how exactly does that render what he actually said irrelevant?

[William Terrell]

Went right over your head that this was a ruling against Thomas Jefferson, in 1808, the author of the Declaration of Independence, who was there when the Constitution was written?

And this matters how? I have already pointed out one flaw in the judges ruling. One court ruling does not a truth make. Just look at the nutso rulings coming out of the courts, both state and federal, currently and in the past.

Wouldn't you think that Jefferson, or even Madison (his Secretary of State), would have said something like, "Hey, that's not what we meant when we wrote the Commerce Clause!" You have some quote, some cite, from any of the Founding Fathers who may have spoken out against Judge Davis' interpretation of the Commerce Clause?

They have said that. Their exact words have been posted to you, in quotes with references, at least a dozen times, two times that I have personally seen.

I'm not going to waste my time showing you something you have already seen and ignored.

Your turn. You find a ruling that supports your contention.

You presented a ruling from a judge in Massachusetts (which had at least one critical flaw in the reasoning). As you should know that ruling is limited to only one district. There have to be the same rulings in a number of districts for the reasoning to have any value in precedent at all. This judge may just be like the 9th Circuit.

If you are going to hold up your theory using federal courts, you must show a preponderance of opinion, not one flawed ruling.

[PaxMacian]

Aspirin overdose deaths occur every year and yet this naturally derived
substance is legal over the counter. Who cares with what intent it is used?
It is not a hammer and neither is an herb. But, the hammer has long been
a symbol for God, as it was with Thor or as implicated in the rock that is
the foundation.

"And if I find a hundred other uses for a hammer, it kind of makes the original intent of the hammer rather irrelevant, doesn't it?"

No, it doesn't! Because even though you could whack someone over
the head with it, doesn't mean you possess the right or power to do so.

[robertpaulsen]

"Because even though you could whack someone over the head with it ..."

Make that a hundred and one.

[inquest]

Note the word "rather". "Rather" implies a choice -- Which would you rather do, A or B?

Now, I could agree with your argument if the quote were modified to read:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

Nice try at avoiding Madison's obvious context, but he's not saying "Would you rather do A than B?" He said that the Founders chose to do A rather than B. In other words, the choice was already made, and he was just indicating what the choice was.

By choosing your own artificial meaning to work with, you're nullifying the whole point of his letter. If he means what you say he means, then he's saying nothing at all, except perhaps some legally insignificant point of historical curiosity. But it's clear that he wasn't writing to Cabell simply to reminisce about the old days.

[robertpaulsen]

"then he's saying nothing at all,"

(Definition of irrelevant, isn't it?)

That's why I say Madison is cautioning Cabell in this letter not to treat the states the same way he's treating the foreign nations. He's reminding Cabell of the history of the Commerce Clause, what drove it, and not to repeat it.

[inquest]

He's not cautioning him to do anything or not to do anything. He's describing the law to him, that's all.

When Madison says, "Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet..." (et seq.), he's saying that the same extent does not belong to it. He then goes on to describe how those extents differ. There's nothing in there about what Cabell should do, or what Madison would prefer. He's just describing what is.

[robertpaulsen]

"he's saying that the same extent does not belong to it."

OK.

(He also adds why.)

"There's nothing in there about what Cabell should do, or what Madison would prefer. He's just describing what is."

OK.

[tacticalogic]

It appears that "the real stakes" is the original intent of the Constitution.

[inquest]

"he's saying that the same extent does not belong to it."

OK.

(He also adds why how.)

[Know your rights]

You read the link.

I did, and it cites no Constitutional language nor competent authority for the claim that, "A simple congressional majority could adopt a statute [to ban alcohol]".

Are you saying that a simple congressional majority could not adopt a statute to ban alcohol? Where's your proof?

The plain language of the Constitution.

I don't recall an amendment for The Lever Food and Fuel Control Act of August 1917 which banned the production of distilled spirits for the duration of the war.

After the war was over, I don't recall an amendment for The War Prohibition Act of November 1918 which forbade the manufacture and sale of all intoxicating beverages of more than 2.75 percent alcohol content, beer and wine as well as hard liquor, until demobilization was completed.

Unlike Prohibition, these were war-related measures, and the Constitution does grant the federal government the authority to conduct war.

A whole bunch of statutes passed by Congress.

Geez, there was passage early in 1913 of the Webb-Kenyon Act, a long-sought federal statute against transporting liquor into states that wished to block its entry.

No violation of state sovereignty there, unlike Prohibition would havwe been absent the amendment.

[Know your rights]

I'd look them up [figures on current Alaskan teen use relative to the lower 48], but why?

To establish that your previously cited factoid had any significance.

Are you willing to make that up-front admission?

What "admission"? You have on the table a factoid that on its own proves nothing; you can leave it at that if you like, or you can attempt to establish its significance by getting some related numbers.