Constitutional Facade, pot ruling

By Nick Gillespie | Aug 1, 2005

June's U.S. Supreme Court ruling against medical marijuana was widely expected, but that makes the decision no more defensible from a legal or moral perspective.

Writing for the 6-3 majority in Gonzales v. Raich , the 85-year-old liberal Justice John Paul Stevens solemnly counseled patients suffering chronic pain and other illnesses to turn to “the democratic process” for comfort. Perhaps, he mused with the confidence and compassion of a jurist who has one foot firmly planted in the grave, “the voices of voters allied with [respondents Angel Raich and Diane Monson] may one day be heard in the halls of Congress.”

While we wait for Congress to pass a medical marijuana bill, we can listen to the howls of anguish from people such as Raich and Monson, who suffer from a brain tumor and a degenerative spinal disease, respectively. Both smoke pot to dull their pain and keep their appetites up. They live in California, which in 1996 passed a ballot initiative approving medical marijuana by a vote of 56 percent to 44 percent (how's that for a “democratic process”?). Three years ago, they sought an injunction to prevent the Drug Enforcement Administration from confiscating their marijuana or arresting them.

The Court ruled that the Constitution's Commerce Clause, which gives Congress the power to “regulate Commerce…among the several states,” authorizes the federal government to pluck medicine from the hands of patients like Raich and Monson. The majority claimed, among other things, that even small amounts of homegrown pot used solely for medical purposes could make it impossible for federal law enforcement agencies to police illegal drugs.

In a dissent joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Justice Sandra Day O'Connor noted that the government “has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime.” As important, cultivation and possession of marijuana for one's own medical use is not commerce as we normally understand the term or as the Framers understood it. In a separate dissent, Thomas argued more broadly that “if Congress can regulate [medical marijuana] under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.” It's an outrage that such viewpoints failed to carry the day.

If the legal reasoning behind the Raich decision is murky, the moral impact of the decision is crystal clear. The Court has turned sick people into criminals—even in the 10 states where voters have used the democratic process to legalize medical marijuana. As Diane Monson told the press, “I'm going to have to be prepared to be arrested.”

In “A Menace to Society” (page 56), Reason 's resident cartoonist Peter Bagge chronicles the legal plight of medical marijuana user Roger Spohn. Created before the Raich ruling, the piece is only more powerful—and disturbing—in its wake.

The growing of marijuana is not a economic activity, and thus is not subject to the commerce cause of our constitution. The ruling is one more example of how our constitution is a façade (disregarded when inconvenient). The clause permits only regulation of trade between states. That distinction was lost in 1942, when local milk production was subjected to federal farm regulations. What’s so wrong about states retaining the right to regulate local activities, a right given by our constitution? The Ninth Circuit Court of Appeals saw it that way, but not our Supreme Court who overturned their ruling. Eleven states have passed laws permitting the medicinal use of marijuana--jk

In 2000, Americans bought about $10.5 billion worth of marijuana from drug dealers, according to an estimate by the Office of National Drug Control Policy. Last year (03), the FBI recorded 755,286 marijuana arrest—Nov. 26, 2004 USA Today, Richard Willing.