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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

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This is my problem with this type of constitutional analysis: There's nothing in the Constitution giving states the power to define the limits of federal law. If federal law has overreached, then it's unconstitutional and invalid regardless of what state law says. If it hasn't overreached, then it overrides state law to the contrary. Either way, state law is irrelevant, and should never be treated as in any way relevant.
1 posted on 12/17/2004 9:12:14 AM PST by inquest
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To: inquest

LeRoy would be so proud. LeRoy you out there, what is your current screen name? Lost track of you after "No King but Jesus".


2 posted on 12/17/2004 9:14:04 AM PST by AxelPaulsenJr (Pray Daily For Our Troops and President Bush)
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To: inquest

I was at the argument and there was quite a bit of discussion on the effect of this law on marijuana prices throughout the country. Also the California statute is so loosey-goosey. I think it's basically NORML at work.


3 posted on 12/17/2004 9:16:59 AM PST by Pinetop
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To: inquest
There's nothing in the Constitution giving states the power to define the limits of federal law.

 1. Powers of the Federal Government - Delegated Powers


4 posted on 12/17/2004 9:17:19 AM PST by E. Pluribus Unum (Drug prohibition laws help fund terrorism.)
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To: inquest
I have never heard a reasoned argument against marijuana use for medical purposes.

It always winds up in some kind of flaming war.

5 posted on 12/17/2004 9:17:58 AM PST by evad (DUmmie FUnnies and Pookie Toons-the start of a nice day)
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To: inquest

MJ should be legal.


6 posted on 12/17/2004 9:23:02 AM PST by Phantom Lord
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To: evad
Why doesn't the federal government just decriminalize marijuana possesion (importing it or transporting across state lines could still be illegal)?

Drug prohibition is a ridiculous criminal joke that is destroying America.

7 posted on 12/17/2004 9:23:15 AM PST by conserv13
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To: inquest
"There's nothing in the Constitution giving states the power to define the limits of federal law."

There's no reason for states to define limits to Federal authority; that's the Constitution's job. If the Constitution doesn't give a power to the Federal government, then that power is reserved for the people or the states. Control over interstate commerce was granted to the Federal government. Control over intrastate commerce isn't among the Federal powers enumerated by the Constitution, and is thus reserved to the people and/or the states, as per Amendment X.

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.
8 posted on 12/17/2004 9:23:36 AM PST by NJ_gent (Conservatism begins at home. Security begins at the border. Please, someone, secure our borders.)
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To: inquest

Maybe its time to start thinking about a Constitutional convention as a way to rein in the Federal Government. The Supreme Court has rewritten much of the Constitution expanding the powers of the Federal government far beyond anything that is rational.


9 posted on 12/17/2004 9:40:11 AM PST by Reaganghost (Reagan could see the Renaissance coming, but it will be up to you to make it happen.)
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To: Reaganghost

I'm really surprised the justice department is taking the approach that it has taken. This would be the perfect opportunity to lobby for Wickard to be limited.


10 posted on 12/17/2004 9:46:22 AM PST by VaBarrister
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To: inquest; robertpaulsen; tacticalogic

rp and tl: pinging you to this thread to discuss the Wickard case, which is the basis of the "substantial effects" interpretation of the Commerce clause.


11 posted on 12/17/2004 10:03:37 AM PST by bassmaner (Let's take the word "liberal" back from the commies!!)
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To: inquest

If the federal government had the power to prohibit sales of marijuana, then there would have been no need for the 18th amendment (which prohibits the sale of alcohol,and was repealed by the 21st amendment).


12 posted on 12/17/2004 10:06:18 AM PST by Aegedius (Veni, vidi, icked-kay utt-bay.)
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To: Phantom Lord

This is a slam dunk, really. No way the SC will go against the Feds on this one. On the bright side, it'll be fun watching all the "conservatives" bitch and moan about the newly restored Commerce Clause when it bites them in the backside somewhere down the road.


13 posted on 12/17/2004 10:07:19 AM PST by Wolfie
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To: Reaganghost
If there was support for a new constitutional convention to rein in the federal government, then there'd be support for reining in the federal government with the existing Constitution. A constitutional convention today would more than likely do the opposite of reining it in.
14 posted on 12/17/2004 10:08:17 AM PST by inquest (Now is the time to remove the leftist influence from the GOP. "Unity" can wait.)
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To: VaBarrister

Once Ashcroft is gone maybe they will ease up. Too late for Chong though.


15 posted on 12/17/2004 10:09:04 AM PST by OneTimeLurker
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To: conserv13
Drug prohibition is a ridiculous criminal joke that is destroying America.

Amen.

Drug prohibition is at its core a utopian social-engineering agenda that contradicts a fundamental reality of human nature. We've had 30+ years of the so-called "War on Drugs" and "illegal" drugs are more plentiful than ever, despite the fact that there are 500,000+ prisoners in the U.S. in jail for drug "crimes".

Memo to Drug War-supporting conservatives: utopian social-engineering agendas are the stock-in-trade of the socialist left, and are eternally doomed to failure. Even ex-Drug Czar Barry McCaffery once admitted that we would never be able to "jail our way out of the drug problem". It's time to admit that the best solution is the market solution: legalize, tax, and regulate, get the federal government out of the drug prohibition enforcement business, and leave regulation up to the states like it is for alcohol and tobacco.

16 posted on 12/17/2004 10:15:21 AM PST by bassmaner (Let's take the word "liberal" back from the commies!!)
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To: evad
"I have never heard a reasoned argument against marijuana use for medical purposes."

The arguments are mainly against "smoked" marijuana for medical purposes.

To reduce the intraocular pressure caused by glaucoma, it would require smoking 10 joints/day, every day. But any form of marijuana for glaucoma, however, is contraindicated due to its negative effect on the optic nerve.

No major medical association supports smoked marijuana for medical reasons. None.

One other little ditty for you. 99% of medical marijuana patients (in a California survey) were already smoking marijuana for their "condition" prior to seeing a doctor. Their doctors were not recommending marijuana -- they were simply authorizing it.

The "condition" in 2 out of 3 cases? Pain.

17 posted on 12/17/2004 10:33:30 AM PST by robertpaulsen
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To: conserv13
"Why doesn't the federal government just decriminalize marijuana possesion (importing it or transporting across state lines could still be illegal)?"

First, I think you mean "legalize" not "decriminalize". Decriminalization means that marijuana is still illegal, but the offense is reduced to a civil misdemeanor with usually a small fine. Some states have decriminalized.

You're looking to turn the legalization decision over to the states and leaving the federal government out of it (unless, as you say, it crosses our borders or state lines).

The 21st amendment, Section 2, did exactly that for alcohol. I would suggest that we get a similar amendment for drugs if we want to go down that path.

18 posted on 12/17/2004 10:42:30 AM PST by robertpaulsen
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To: Wolfie
On the bright side, it'll be fun watching all the "conservatives" bitch and moan about the newly restored Commerce Clause when it bites them in the backside somewhere down the road.

Hey, this conservative is pulling for Raich, because I understand that it will also affect the Stewart case, which involves homemade NFA firearms.

For your reading pleasure - transcript of the USSC Raich case oral arguments

19 posted on 12/17/2004 10:43:54 AM PST by gieriscm
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To: inquest
Of course the state laws are relevant. Federalism is all about power sharing. The feds were to control certain things governments have a right to control in this country and the states the rest. The question in cases like these is who has the right to control a particular activity within a state, the state, the feds, or both? One of the determining factors in these commerce clause cases is whether the activity involves interstate commerce. The way the state laws are written can play a very important role in making this determination. 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. Just because something is relevant in a legal sense does not mean it is necessarily determinative, but it is useful in the analysis.
20 posted on 12/17/2004 10:45:18 AM PST by TKDietz
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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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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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