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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: evad
"If it works, is controlled and prescribed by a doctor,"

Moot point. The product is neither controlled or prescribed by a doctor.

If marijuana were teated the same as any other drug in the medical community, I would have no problem supporting it. The medical marijuana legalizers want an exception made for their "medicine".

That, I don't support.

41 posted on 12/17/2004 11:12:58 AM PST by robertpaulsen
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To: inquest
Do you believe the Founding Fathers . . .

What I know is that the primary founding father, George Washington, maintained copious notes on the germination and growing of Cannabis at his estate, Mount Vernon.

Reference: Library of Congress.
42 posted on 12/17/2004 11:16:28 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: Ancesthntr

As a 3d year law student, I too found Wickard absurd, a relic of WWII and the New Deal that strains "effect" on interstate commerce to the point of absurdity. Scalia should see Wickard for what it was: a wartime decision that was tailored for a specific set of facts/cirsumstances, that was an "emergency" measure lacking the aura of stare decisis. I will be very, very disappointed in Scalia and Thomas if they vote to uphold this absurdity because they dislike marijunana.


43 posted on 12/17/2004 11:17:08 AM PST by scottybk ("Pure democracy is 2 tigers and a lamb voting on what to eat for lunch." Benj. Franklin)
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To: Ancesthntr

As a 3d year law student, I too found Wickard absurd, a relic of WWII and the New Deal that strains "effect" on interstate commerce to the point of absurdity. Scalia should see Wickard for what it was: a wartime decision that was tailored for a specific set of facts/cirsumstances, that was an "emergency" measure lacking the aura of stare decisis. I will be very, very disappointed in Scalia and Thomas if they vote to uphold this absurdity because they dislike marijunana.


44 posted on 12/17/2004 11:17:08 AM PST by scottybk ("Pure democracy is 2 tigers and a lamb voting on what to eat for lunch." Benj. Franklin)
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To: corkoman
corkoman, I'm shocked! Do you really believe I would make a statement I couldn't support? For shame.

The following is an excerpt from Study casts doubt on marijuana's effectiveness as glaucoma treatment:

"But to be effective, Green said a patient would have to smoke an unrealistic amount of marijuana."

"If you want to maintain a low interocular pressure with marijuana, then you have to smoke a joint every 1 to 2 hours which is 10 to 12 joints a day, which is 4,000 a year," he said. "That's by anybody's definition -- no matter how liberal you are -- a considerable consumption."

"His study is published in the recent issue of the American Medical Association's journal, Opthamology."

45 posted on 12/17/2004 11:19:21 AM PST by robertpaulsen
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To: robertpaulsen
If marijuana were teated the same as any other drug in the medical community, I would have no problem supporting it

Perhaps one of the differences between the two is that most prescription meds have potentially far worse side effects than marijuana.

Heck, you can't kill youself by smoking too much marijuana. But how many prescription meds can you say the same thing about?

46 posted on 12/17/2004 11:22:21 AM PST by gdani
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To: Durus
"The 21st amendment reversed the 18th amendment. What amendment would your suggested amendment be repealing?"

None. Who says an amendment has to repeal another amendment?

But if we're going to turn a power like drug legalization over to the states, I believe all states should have a say so in that decision. Think of the impact of state drug legalization on the surrounding states who choose not to.

State alcohol legaization worked only because all states legalized. That would not happen with drugs.

47 posted on 12/17/2004 11:25:52 AM PST by robertpaulsen
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To: WildTurkey
Perhaps you should do your homework and read up on Soros and his quest for total drug legalization ..

Perhaps you should stick to my particular point which is that a controlled drug should be available if it works.

I couldn't care less what Soros is trying to do or anyone else who is trying to pervert the system.

48 posted on 12/17/2004 11:26:28 AM PST by evad (DUmmie FUnnies and Pookie Toons-the start of a nice day)
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To: scottybk

Exactly. This case could legitimize Wickard for the sake of so-called-morals. Wickard could easily be distinguished on the grounds that it was a wartime decision to protect the nation's wheat industry.


49 posted on 12/17/2004 11:27:09 AM PST by VaBarrister
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To: gdani
The real difference for the poster is that he is terrified that someone might actually have a pleasant sensation from a substance without the permission of a group of armed people.
50 posted on 12/17/2004 11:29:44 AM PST by Protagoras (Christmas is not a secular holiday)
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To: Ancesthntr
Wickard, on the surface, IS laughable. One farmer, a couple of bushels of wheat, for his own personal use, is going to bring down the entire United States Agricultural Adjustment Act?

Of course it's not that simple, as you well know.

51 posted on 12/17/2004 11:30:37 AM PST by robertpaulsen
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To: VaBarrister
I'm going to make a flat-out statement here.

More damage has been done to our society by Budweiser (or Coors) and Phillip Morris (or American Tobacco) than marijuana has caused in 6,000 years.
52 posted on 12/17/2004 11:34:07 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
>>Moot point. The product is neither controlled or prescribed by a doctor.<<

My point is that it could be, like any other 'approved' drug, some of which are much more dangerous than marijuana.

"If it works, is controlled and prescribed by a doctor,"

I fail to see how this statement is moot. If that's the case then what's the point of ever postulating any premise?

It isn't the way it is so why bother?

53 posted on 12/17/2004 11:34:08 AM PST by evad (DUmmie FUnnies and Pookie Toons-the start of a nice day)
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To: evad
which is that a controlled drug should be available if it works.

A better idea would be if substances were available, period.

54 posted on 12/17/2004 11:34:28 AM PST by Protagoras (Christmas is not a secular holiday)
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To: Beckwith
<> Not to mention the benefit to the snack and pizza industry.
55 posted on 12/17/2004 11:35:06 AM PST by VaBarrister
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To: Beckwith
"It is just important to know where all this crap starts and what starts it."

Why is it important? That's not the current reasoning.

None of those arguments were used by Congress in passing the Controlled Substances Act of 1970.

56 posted on 12/17/2004 11:36:50 AM PST by robertpaulsen
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To: robertpaulsen
The federal government and state governments (with the exception of Montana, and that is dubious) do not have the enumerated power of drug legalization. Using the amendment process to remove a power that the federal government usurped in the first place borders on the absurd.
57 posted on 12/17/2004 11:38:38 AM PST by Durus
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To: inquest
"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."

What activity are you examining? Are you looking at whether the federal government outlaw marijuana altogether, or whether a person can grow a small amount of marijuana and use it within his state or have someone grow it for him for use within his state? The federal laws make no mention of medical marijuana. Possession or manufacturing of marijuana is illegal under federal law regardless of the purpose for the possession or manufacturing? Something else that has to be considered under current interpretation of the commerce clause accepted by the Supreme Court is whether the activity has an effect on interstate commerce. This calls into question how narrowly tailored the state laws are that define the conduct in question.

Again, this is all relevant, but certainly not the whole ball of wax. There is a lot to look at here. But make no mistake about it, this is a states rights issue. We're looking at federalism and just how far the feds can encroach in areas traditionally left up to the states. When this country was founded the sovereign colonies were agreeing to join together under a central authority that had very limited powers. The federal government was there to see that things ran smoothly between the states, but the these states were supposed to keep a great measure of their sovereignty. Otherwise they never would have signed on. A lot of us believe that the Supreme Court has made some important errors in interpreting the Constitution that have taken a severely eroded the sovereignty of the individual states, and that's not a good thing. The Constitution was full of little checks and balances built in by design to keep the federal government and any of its individual branches from ever having too much power. We were getting out of a situation at the time where we felt like we were being run over by a tyrannical government in England, and we didn't want that situation to develop here with our own far central government. The founding fathers tried to build in safeguards to protect against this, and those safeguards are no less important today than they were over 200 years ago.
58 posted on 12/17/2004 11:38:46 AM PST by TKDietz
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To: Indie
You should then also be consistent with your anarchist views and call for the legalization of all drugs, not just marijuana.

And if you were consistent and honest you would mention that you also favor no restrictions on prostitution, gambling, pornography, and gay rights.

Am I correct?

59 posted on 12/17/2004 11:41:52 AM PST by robertpaulsen
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To: TKDietz
Are you looking at whether the federal government outlaw marijuana altogether, or whether a person can grow a small amount of marijuana and use it within his state or have someone grow it for him for use within his state?

If those second two types of activity are constitutionally off-limits to the federal government, then it doesn't have the full power to do the first. Again, it doesn't matter what state law says.

60 posted on 12/17/2004 11:42:44 AM PST by inquest (Now is the time to remove the leftist influence from the GOP. "Unity" can wait.)
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