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.

[robertpaulsen]

"What "admission"?"

That you're willing to admit up front that if the Alaskan teen numbers today are about equal to the rest of the nation, it means that legalization for Alaskan adults did impact teen use.

I got the link from TKDietz. I'll post it upon seeing your admission.

As I said before, without your admission, why bother doing the work?

[Know your rights]

if the Alaskan teen numbers today are about equal to the rest of the nation, it means that legalization for Alaskan adults did impact teen use.

That would be weak evidence at best; the ratio could change because of relatively increased use in the lower 48. If Alaskan use trended downward after recriminalization in a way that lower-48 use did not, that would indicate that legalization for Alaskan adults did impact teen use.

I got the link from TKDietz. I'll post it upon seeing your admission.

As I said before, without your admission, why bother doing the work?

As I said before, to establish that your previously cited factoid had any significance. (And since TKDietz gave you the link, what "work" are you whining about?)

[robertpaulsen]

"That would be weak evidence at best;"

Yeah, well, there you go. Very possible that teen use in the U.S. doubled to equal that of Alaskan teen use.

Adios.

[Know your rights]

robertpaulsen: "I got the link [on current Alaskan teen marijuana use] from TKDietz."

TK, might I also have that link? Thanks!

[Know your rights]

Very possible that teen use in the U.S. doubled to equal that of Alaskan teen use.

Use goes up, use goes down; it's entirely possible.

Adios.

Flee, coward, flee.

[bedolido]

As a child of the 60's who grew, bought and sold mari-jane. I can trully say it didn't affect... effect... affect? effect?

what were we talking about?

[Blast_Master]

Look. Kids are getting f'd up on paint, gasoline, and glue. This stuff is cheap and available and REALLY does do brain damage in the near and long term. Now, we can't really make those substances illegal right? But we make it illegal to grow a non-physically addictive weed whose mild effects include increased appetite and a euphoric feeling. Never heard of anyone smoking a joint and committing acts of violence, they usually at worst become paranoid and fall asleep at high doses. Why not legalize it and put it in the same class as alcohol, which IS an addictive drug associated with violence and which in large quantities is a lethal poison? Simply make it a major felony to sell either substance to minors, and increase penalties for driving while intoxicated. Tax it, use taxes for rehabs and substance abuse education. Anyone see the logic here?

[Know your rights]

Why not legalize it and put it in the same class as alcohol, which IS an addictive drug associated with violence and which in large quantities is a lethal poison? Simply make it a major felony to sell either substance to minors, and increase penalties for driving while intoxicated. Tax it, use taxes for rehabs and substance abuse education. Anyone see the logic here?

Everyone but the allegedly "conservative" WOD-lovers sees it.

[bedolido]

I must say... in my younger years (I'm 60) I smoked enough pot to know the effects (affects?) of the weed. I quit in the early 70's.

I am a very conservative man and see it (weed) as less dangerous then alcohol and all the other things you mentioned.

I design computer websites and was a mainframe online programer for years. My thinking is clear and mind is strong.

I joke about it... but it IS less dangerous then any other so-called drug.

I would oppose it's legally though. I had fun... no reason for anyone else to have any.

[headsonpikes]

Anyone see the logic here?

Logic???

On a marijuana thread?

Sorry, we're talking doubleplusgood duckspeakers waging the WOD here!

Mere logic must wait its turn in line while established prejudice holds the floor.

[TKDietz]

Here is a link to the 2002 state by state data from the NSDUH where you can find marijuana use numbers for Alaskans 12 - 17 years of age. See Table A.2:
http://www.oas.samhsa.gov/2k2State/html/appA.htm#taba.1

Note though that the study rp talks about was one performed by the University of Alaska in 1988 I believe. The numbers were then compared to SAMHSA's national numbers. SAMHSA did not do state by state numbers until 1998. The results, methodology, and so on from the University of Alaska's survey do not appear to be in print. You can't find it on the net and you can't get it through an inter-library loan. For all we know they interviewed ten long haired Eskimo teens and called it a representative sample of Alaskan teens. This was a survey conducted by college kids that was then compared to a government survey. That in and of itself should raise red flags. Who would young people be more honest with about illegal drug use, official government workers collecting data for the government, or college kids doing a survey for their school?

I doubt very seriously that teen use in Alaska was ever double the national average for teens.

[Know your rights]

Thanks, TK! No wonder robertpaulsen was so coy with his "evidence."

[TKDietz]

A lot of people say the pot from back in the days when you smoked it was really weak. It is allegedly several times stronger on average today than it was back then. The implication people make is that people barely got a buzz of the stuff people used to smoke but they get stoned out of their minds on the new stuff. From your experience was there strong pot in the sixties and early seventies? There sure was in the late seventies and eighties when I smoked it fairly regularly. There was not so strong pot too but unless it was absolute dirt weed all you had to do was smoke more of it to get the desired effect. I'm highly suspicious of the reports that todays marijuana is so much stronger than that people used to smoke and even more suspicious of the claims that stronger pot is so much worse for people than weaker pot.

[robertpaulsen]

"I doubt very seriously that teen use in Alaska was ever double the national average for teens."

The perfect pair.

You can deny that teen use was ever double, and MrLeRoy can posit that teen use in the lower 48 actually increased to match Alaska.

You guys need a third to join you.

Drug problem? What drug problem?

[TKDietz]

I've got to admit, that was funny.

[robertpaulsen]

What would we, as a society, gain by legalizing yet another drug?

Oh, btw, those under 21 already account for a high percentage of users and would be unaffected by any change in the law. Actually, if history is any guide, their numbers would increase if marijuana were legalized for adults (happened in Alaska).

[Blast_Master]

That was an easy question, you're baiting me right?

First, I would apply legalization to all drugs. Those like cocaine and methamphetamines would be labeled "Poison" and anyone who dies as a result of their abuse will have said to committed suicide. I will expound at end...

Second, by legalizing all drugs you have done the following: Removed a lucrative black market that has turned our inner cities into factories of death. You don't see kids selling alcohol and ciggarettes on the street, and if they did.. they don't make enough money to finance gangs and their weaponry. Everybody has heard of Al Capone and for that matter Joe Kennedy (father of Kennedy Clan). You would never had heard of them if alcohol hadn't been prohibited at one point.

Third, the only reason "numbers" increased as you say they did in Alaska is because people would not be hesitant to state they used it in a survey once it was legal.

Fourth, Everyone knows where to get pot or someone who can get it. Go ask any kid of any age and they will tell you who to get it from. It's all over the place, there is no avoiding it. It is so prevailant that it would be impossible to get rid of... how has the "War on Drugs" done so far? Nothing... 100s of billions upon billions of taxpayer dollars spent... 70% of our prisoners up on drug charges... and there has never been a reduction in supply or use.

What to do if legalized:

1. Make it a felony to give drugs to minors. Just like alcohol should be. I remember it being difficult to get booze and easy to get drugs in high school.

2. All Under the influence laws would apply.

3. Tax it and spend taxes on rehab and education.

4. Legalize all drugs with massive spending on advertisements explaining what they do. Poor kids in middle America are destroying themselves with paint, gasoline, and glue... all readily and legally available.. but with no idea what they are doing to their brains.

5. Those who die as a result of drug use will have been considered to have committed suicide (no life insurance applies)

I say either make everything Illegal and show me how you prevent it from being used and being a lucrative black market that generates 80% of the crime and gun deaths in our society, or make it legal and as safe as you can. I cannot see supporting the current Status Quo at any rate... This drug legal, this drug illegal... War on Drugs that can never win given any scenario....

[TKDietz]

"Actually, if history is any guide, their numbers would increase if marijuana were legalized for adults (happened in Alaska)."

Why is it that per capita marijuana use is higher in the US than it is in Holland where they sell marijuana openly at tax paying shops? Or can we not make that comparison because Holland is far away from us and they are different than we are? Or maybe we can't compare use in Holland to use in the United States because the same survey isn't used there and here? Or we could bring up the fact that marijuana use did go up there after they started allowing open sales, even though use went up at the same time all over Europe and Holland still has average marijuana use rates as compared to the rest of the European countries (average there being lower than use here).

Use in states that have decriminalized is about the same as use in states with harsher laws. Use in countries where it is basically legal or where the laws aren't enforced is lower or around the same as use here. Your Alaska example is based on highly suspect data at best, without any other data to compare from years prior to the court decision that allowed marijuana use and growing in the home. It's certainly not smoking gun evidence that proves your point conclusively. The body of the evidence seems to point to a different conclusion and that is that the laws have little effect on marijuana usage rates. If marijuana was such an enticing drug that everyone would use it if there was no risk of arrest you would think that the percentage of users reporting past month use would several times higher than the less than 10% figures we see in states and countries where people get arrested for possessing even a small amount. Instead, per capita use is close to the same or often lower than average in places where they don't arrest people for pot. Obviously, the laws don't matter that much.

[Blast_Master]

ping

[Know your rights]

posit that teen use in the lower 48 actually increased to match Alaska.

More robertpaulsen misrepresentations; nobody on this thread has "posited" that. But please keep up the deception; the more people who know how 'FR's most reasonable WOD supporter' actually conducts himself, the better.