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June 8, 2005 - The Chicago Tribune (IL)

Column: Will Congress Have The Guts To Tackle Medical Marijuana?

By Clarence Page, Tribune editorial board

Return to Drug War News: Don't Miss Archive

WASHINGTON -- "When I use a word," Humpty Dumpty said in rather a scornful tone in Lewis Carroll's "Through the Looking Glass," "it means just what I choose it to mean--neither more nor less.'" The same might be said by U.S. Supreme Court justices.

Take, for example, Gonzales vs. Raich, the high court's medicinal marijuana case.

The commerce clause in Article 1 of the Constitution could hardly be more clear in limiting federal power to commerce "among the several states," not within a state.

But in Gonzales vs. Raich, a 6-3 majority has stretched "commerce" to mean just what they choose it to mean--far enough to let the distant feds, not the close-to-the-people state governments, decide whether ailing residents should be allowed to grow their own medicine under a doctor's care.

In the Senate's heated debate over judicial appointments we have constantly heard conservatives argue that judges should lean toward a modest role for the national government. Over the past decade, a conservative Supreme Court coalition under Chief Justice William Rehnquist has rolled back congressional power and elevated "states' rights" in a series of decisions. Nevertheless, the Supreme Court reasserted federal authority in Gonzales vs. Raich on Monday, even in the 11 states that now permit marijuana when recommended by a doctor.

The people in those 11 states have spoken, and the Supreme Court has told them to shut up.

Justice John Paul Stevens' majority opinion stretched the meaning of "commerce" to include anything done in one state that could have "a substantial effect on interstate commerce." And how does the court define "substantial"? Broadly enough to cover just about anything.

"... [P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity," Stevens wrote.

Justice Antonin Scalia, the archest of the high court's arch-conservatives, chimed in, if only to say that Stevens' federal "intrusionism" did not go far enough. "Drugs like marijuana are fungible commodities"; even when "grown at home and possessed for personal use," it is "never more than an instant from the interstate market."

Both opinions sound more like economic theory than day-to-day reality. After all, the medical marijuana market is only a tiny fraction of a state's overall drug traffic.

That very rational point, among others, was made by Justice Clarence Thomas, who cut himself loose from his usual tether to Scalia's world view to raise a clear, compelling and badly needed voice of reason: If the two California women who are the defendants in this case are involved in "interstate commerce," he asked, what in these United States is not "interstate commerce"?

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana," Thomas wrote. "If Congress can regulate this under the commerce clause, then it can regulate virtually anything--and the federal government is no longer one of limited and enumerated powers."

In other words, keep your federal hands out of matters that pertain only to a particular state and do not infringe on fundamental human rights.

That human-rights point is particularly significant to those African-Americans who are old enough to remember when "states' rights" was offered as a lame excuse to perpetuate racial segregation laws in the South. The 1954 Brown vs. Board of Education Supreme Court decision properly overruled states' rights that violate fundamental human rights.

By contrast, Gonzales vs. Raich ironically overrules states' rights in order to violate a humane right, the right of the sick to treat their own illness. "Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens," Thomas writes. Right on.

The good news in Gonzales vs. Raich is that the high court did not overturn any of the existing state medicinal marijuana laws. Stevens' decision also ruled in defiance of Congress and John P. Walters, director of the White House Office of National Drug Control Policy, that marijuana does indeed have "therapeutic value." Stevens suggested that the executive branch might reclassify marijuana for medical purposes or that Congress might allow "the laboratory of the states" to decide this matter for themselves.

In fact, Congress is considering two bills, backed mostly by Democrats and libertarian-leaning Republicans, that could legalize the medicinal use of marijuana at the federal level.

Congress usually kicks such hot-burning issues as marijuana reform over to the courts. This time, the courts have kicked it right back. Congress, as W.C. Fields once said, needs to take the bull by the tail and face the situation. And the public needs to make itself heard.

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