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June 10, 2005 - The Korea Herald (South Korea)

Killing Off Limited Federal Government

By Doug Bandow, senior fellow at the Cato Institute and former special assistant to President Reagan

Return to Drug War News: Don't Miss Archive

The U.S. government cannot ban criminals from bringing guns to schools. But it can arrest a person for growing marijuana at home to ease nausea from chemotherapy. Such is the state of Supreme Court jurisprudence.

The intellectual case for America's "war on drugs" faded long ago. Criminalization of what is primarily a moral and health problem has done little to stop substance abuse. But the "war on drugs" has penalized the desperately ill and dying, who have turned to pot as a last resort.

A decade ago California legalized medical marijuana. Ten other states followed, allowing patients - suffering from such diseases as AIDS, cancer, glaucoma, and multiple sclerosis - to smoke grass for relief from nausea and pain.

Although state troopers and local police no longer toss these users in jail, Uncle Sam continues to arrest even those who are dying. Never mind that Congress is dominated by Republicans claiming to believe in federalism, state autonomy, and limited government.

Fifteen years ago the U.S. Supreme Court began to revive the original constitutional understanding that the federal government did not have unlimited jurisdiction. The court controversially overturned the Gun Free School Zones Act of 1990 (Lopez) and part of the 1994 Violence Against Women Act (Morrison).

These decisions suggested there were at least some limits on congressional power. No longer.

As Justice Sandra Day O'Connor noted in her dissent in Gonzales v. Raich, "The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens." Now Washington busily overrides states that seek to protect the sick.

Angel Raich, one of the plaintiffs, suffers from multiple ailments, including chronic pain, nausea, scoliosis, seizures, spasms, multiple tumors, and wasting syndrome. It is obvious that Ms. Raich is no recreational pot user.

"We are not being disobedient," she notes: "We are just using this medicine because it saves our lives." Her doctor, Frank Lucido, says pot was "the only drug of almost three dozen we have tried that works."

Although Angel Raich has not gone to jail, the government has targeted other patients who use and grow medical pot. For instance, the Drug Enforcement Agency raided the garden of co-plaintiff and fellow Californian Diane Monson, who suffers from degenerative spine disease.

Advocates of Washington's drug war, from federal officials like "drug czar" John Walters to coercive "prevention" groups, such as the Drug Free America Foundation, cry crocodile tears for the sick, arguing that marijuana is not good medicine. Maybe, but the anecdotal evidence is impressive.

Overwhelming majorities of American and British oncologists say they would recommend that their patients use pot if it was legal. Even the federal government's own National Institute of Health acknowledged that "marijuana looks promising enough to recommend that there be new controlled studies done."

But pot's value as a medicine doesn't matter in terms of Uncle Sam's role. The efficacy debate should be carried out in state governments across America, not Washington.

If residents of Oregon, Colorado, Arizona, or any other state believe that someone dying of cancer should be left alone if he or she uses marijuana to control chemo-induced nausea, Uncle Sam should butt out. As Justice O'Connor observed, "There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernible, let alone substantial, impact on the national illicit drug market."

The issue is not just victimizing people who already are vulnerable, desperate, and depressed. It also is whether there is any limit on the reach of Uncle Sam's mailed fist. Warned Justice O'Connor, the ruling "threatens to sweep all of productive human activity into federal regulatory reach."

Chief Justice William Rehnquist and Associate Justice Clarence Thomas also dissented. Wrote the latter, "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."

Indeed, if the opinion in Gonzales v. Raich is correct, why did the nation's founders bother to write a constitution? They simply could have explained legislative power in one sentence, "Congress can do anything that it pleases."

Presidential candidate George W. Bush said medical marijuana should be left up to the states. But President George W. Bush's administration successfully urged the Supreme Court to endorse federal supremacy in a sick person's garden. Limited government in America is dead.

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