Posted on 01/03/2005 9:57:34 AM PST by CHARLITE
There are two fairly well-defined positions that have emerged regarding the issue, under consideration by the Supreme Court of the United States of America, of whether the use of marijuana should be legalized for the treatment of certain medical conditions.
The first of these sees marijuana's limited legalization as, in almost all cases, the effort of so-called "stoners" (in contemporary parlance people who pretty much can't live without getting high on marijuana on a daily basis) to find a way to circumvent existing laws that criminalize the use of wacky weed so that they (the stoners), with the consent of their croakers (q.v., below), can stay high all the time with impunity. Those who oppose passing laws which legalize the use of marijuana in "medically" sanctioned cases are seen by those who favor such laws' passage as inflexible obstructionists (scare quotes intended to emphasize the rather cynical view taken by opponents of legalization to the validity of the term "medical").
The term "croaker" is Beat-Generation slang for "doctor." I first encountered it in the writings of William S. Burroughs. Its meaning has since the 1950s been narrowed somewhat to denote a physician who stretches prescription medication guidelines to insure that his or her patients do not have to endure existential pain beyond what contemporary drug mediation can guarantee is acceptable. Under the proposed new laws, I can't imagine marijuana becoming anything — at least in California — but a substance any croaker would readily prescribe for patients with the same sort of substance cravings Burroughs and his cronies flaunted 50 years ago, and for which their croakers provided relief by prescribing opiates when heroin (Burroughs' drug of choice) was in short supply.
On the other side of this issue are those who favor the blanket legalization of medical marijuana. The "medical" umbrella seems to be providing, for people who would ultimately remove any restrictions whatsoever on smoking grass, something of an entry-level platform from which they might leverage across-the-board approval of the use of boo to ameliorate pretty much any condition that might create stress in any human who tends to respond to "stressful" situations by freaking out. All of this is to say that, where the use of marijuana is concerned, the currently-enumerated "medical" conditions are designed to protect a sub-class of American citizens from coping with their lives in traditionally accepted (read "pharmacologically unmediated") ways.
In fact, if such legislation is allowed by the Supreme Court to stand, it will become not much more than an excuse for a bunch of pot-smokers of every ilk to do what abusers of the Americans With Disabilities Act and their attorneys have done: find ways to twist and subvert and otherwise undermine legislation designed to provide succor to a class of American citizens who are legitimately entitled to government-sanctioned relief from their afflictions so that the legislation in question becomes the instrument, in this case, for a bunch of stoners "getting over" at the expense of American taxpayers, who will minimally be presented with the bill for legal fees in the lawsuits that result from potheads' bringing actions against the state if they are denied, for any reason whatsoever, funded access to the drug which has been the foundation of their lifestyles for, in many cases, the past several decades.
But these arguments beg the real question, which has to focus on the consequences for human brain chemistry and, subsequently, human behavior, of the overuse of psychotropic substances. A psychotropic substance is one which, when ingested and absorbed into the bloodstream, interacts directly with brain chemistry to alter moods and behavior. Psychotropic substances can dramatically change the way we feel and the way we respond to our environments. Psychotropic substances are all potentially addictive, and marijuana is most assuredly a psychotropic substance.
Let me backtrack a bit. Hundreds of substances — from the caffeine in coffee to the nicotine in cigarettes to the alcohol in "adult" beverages — that many of us routinely ingest are psychotropic. Add to these innumerable prescription drugs, from antidepressants to allergy medications to painkillers to stimulants, and you'll begin to get an idea of the range of "acceptable" psychotropic substances tens of millions of Americans consume on a daily basis. And I haven't even mentioned so-called "street" drugs, from ecstasy to cocaine to heroin to marijuana, that millions more Americans use on a more-or-less regular basis.
What no legislation, and no public policy that I'm aware of, has ever taken into account is the biochemistry of drug use. While physicians routinely prescribe drugs that have jarring effects on human brain chemistry, they also routinely fail to acknowledge or to advise their patients that such drugs, although often suppressing symptoms of everything from allergies to depression, at the same time alter brain chemistry in such a way that the humans taking the drugs become more and more dependent on them and that their bodies and psyches are consequently less and less able to mount natural responses to their conditions. In other words, the greater the degree to which you rely on any sort of psychotropic drug to mediate between you and the events of your life, the less "human" you become.
THC, the psychotropic ingredient in marijuana, substitutes for the brain chemical anandamide, which plays a role in such important functions as memory, mood, appetite, and pain perception (just in case you were wondering why stoners can't seem to concentrate, can't recall what's happened from one moment to the next, and need to be constantly resupplied with munchies). But while no one is arguing that marijuana might not play some role in mitigating certain types of pain, becoming an habitual marijuana user has other significantly damaging side effects, including lethargy, loss of motivation, inability to focus, the aforementioned memory lapses, and, after prolonged use, difficulty in experiencing pleasure, among numerous others.
Legislation which broadens the scope of acceptability of our use of psychotropic substances — no matter whether the substance be marijuana or Paxil, cocaine or Ritalin (Ritalin, for the record, interacts to disrupt brain chemistry in exactly the same way cocaine does) — is legislation that expands institutional authority over what we accept as "human." This is to say that legislation which expands the acceptability and the legality of using psychotropic substances for the purpose of helping us cope with the physical or psychological pain of existence is legislation which contributes, ultimately, to the disaffirmation of our humanity, of our ability to experience fully what it means to be human.
This is not to say that I don't favor, for instance, the use of painkilling prescription drugs to ease the suffering of those who are in the final stages of a terminal illness. The use of painkillers for the purpose of making bearable another human's last days on earth is to me not only an acceptable but even an honorable application of modern pharmacology. Nor do I object to the short-term use of prescription psychotropic substances in times of crisis, such as enabling someone to bear otherwise debilitating pain while recovering from physical or emotional trauma.
Rather, at issue here is the legitimization of what has been regarded as a "street" drug for the purpose of ameliorating the suffering associated (at least anecdotally) with certain medical conditions. (Indeed, the evidence that marijuana is effective in reducing physical pain among its users is totally anecdotal to my knowledge.) Further, the issue involves adding yet one more psychotropic substance to the list of such substances that can be legally used to reduce our humanness, our ability to build the natural strength to respond to the events and conditions of our lives without biochemical mediation. It is, finally, for this reason that I would argue against the legalization of marijuana use for medical purposes.
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Writer Greg Lewis is co-author, with Dr. Charles Gant, of the Warner Books hardcover "End Your Addiction Now." Dr. Lewis is a frequent contributor of political and cultural commentaries to several websites. His next book, "The Politics of Anger: How Marxism's Heirs Are Redefining Liberalism in America Today," is due out in late Spring. Read more of his work at http://www.GregLewis.org
Comments:Glewis9000@aol.com
I've seen that sort of thing happen a lot. It happened to me on another thread just a couple of hours ago. When it does, all you have to do is hit Refresh once or twice.
It is what he wrote. With or without my explanatory "to be used", the sentence conveys exactly the same thought. It's really too bad you don't have anything to "attach to" in 2005, but I'm sure the sentence would diagram quite well in 1829, confirming my interpretation.
"That's why this whole "dormant" commerce clause theory has no basis in original intent."
Then to what was Founding Father and Chief Justice John Marshall referring in 1829 in Willson v. Blackbird Creek Marsh Co. 2 Pet. 245 when he said:
"We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."?
"Foreseen here" means "here" in the essay that he was writing."
Bzzzzzzt! Look at the sentence: "... and has produced there the mischiefs which have been foreseen here.
Germany attempted to prohibit tolls via laws from the Emperor and Diet -- it wasn't working. Madison is saying that the practice that has produced the mischiefs there in Germany have been foreseen here in the U.S. We don't do it that way here. We saw what happened there. It didn't work there.
"Positive" involves doing something that's not in response to someone else doing something wrong, but rather attempting to bring about a desirable goal (such as promoting manufactures) without anyone necessarily having prompted your action by doing something wrong."
Actually we agree, if that is indeed your definition. Keep in mind, to me, this would include the desirable goal, for example, of preserving healthy commerce by prohibiting the "exportation or shipment in interstate commerce of livestock having any infectious disease".
Do you agree?
If that's the real issue - the method by which injustices should be corrected - then what is the relevance of the "positive purposes of the General Government" outside of that context?
If all he's talking about in this letter is how the injustices are to be remedied, then he isn't talking about any use of the power to RCASS for any purpose beyond that.
If you think that Congress was to be the sole arbiter of conflicts, that Congress was to be the sole remedial power, you are 100% wrong.
I know you're wrong because that is not the way it was done, and is not the way it is being done today.
Your only support for that contention is an exercise in sophistry, tring to make it appear that the "dormant commerce clause" is a power exercised by the states. It is not. The states may take their grievances before a federal court, but that court is still a part of the federal government. Wheather by positive explicit action by Congress, or finding of an implicit negative restriction by the federal courts the remedial power resides with the federal government, alone.
Injustices may be remedied in the courts by the states themselves or may be remedied by Congress enacting a law (which would be considered a positive purpose). It was Madison's intent that the former be used, rather than the latter.
If all he's talking about in this letter is how the injustices are to be remedied, then he isn't talking about any use of the power to RCASS for any purpose beyond that."
Other than the phrase "positive purposes of the General Government", no. Certainly Madison wasn't precluding Congress from preserving a healthy nation by prohibiting the "exportation or shipment in interstate commerce of livestock having any infectious disease".
Wouldn't preserving a healthy nation be a "positive purpose of the General Government"?
"Wheather by positive explicit action by Congress, or finding of an implicit negative restriction by the federal courts the remedial power resides with the federal government, alone."
Correct. But you may want to ask yourself why it is that a state can seek protection under the federal commerce clause when there is no federal law involved?
"tring to make it appear that the "dormant commerce clause" is a power exercised by the states."
I said it was a negative and preventative provision against injustice, not a "power". Although the Commerce Clause is a definition of federal power, the states may use the protection of "Dormant Commerce Clause" when seeking to rectify injustice.
Maybe it was. Did he mention this intent in any of his other writings on the subject? Correcting in injustices might be considered "a positive purpose", but Madison says "the positive purposes", a term that implies applications outside the context of simply remedying injustices among the states. Are you expecting that arguing that "correcting injustices" is a "positive purpose", you can get any "positive purpose" through the door on the same pass?
Wouldn't preserving a healthy nation be a "positive purpose of the General Government"?
It would indeed. In certain cases it may be possible to help preserve a healthy nation while insuring healthy commerce and correcting an injustice among the states. When such opportunities arise, the power to RCATSS would be an appropriate means to accomplish that.
Correct. But you may want to ask yourself why it is that a state can seek protection under the federal commerce clause when there is no federal law involved?
Because the "dormant commerce clause" means that if Congress does not regulate a particular activity, the absence of any federal law can be held as a declaration that the activity should not be regulated, an implicit restraint on the the states imposing their own regulations. The authority to decide if it will or will not be regulated still resides with Congress, and the power to provide the remedy still resides with the federal government.
I said it was a negative and preventative provision against injustice, not a "power". Although the Commerce Clause is a definition of federal power, the states may use the protection of "Dormant Commerce Clause" when seeking to rectify injustice.
Which says percisely nothing relevant to the issue of the power to RCATSS being used for the "positive purposes of the General Government".
Your last sentence means "the latter" cannot be used. You are back to saying "rather than" means both options can be chosen. That violates the meaning of "rather than". I can repost the definition from the American Heritage Usage of the English Language.
I said it was a negative and preventative provision against injustice, not a "power".
Roget's 1922 International Edition classified "provision" as a word "releasing voluntary power". When Congress determines that an injustice is present, the provision releases the voluntary power of Congress to RCATSS to correct the injustice.
Although the Commerce Clause is a definition of federal power, the states may use the protection of "Dormant Commerce Clause" when seeking to rectify injustice.
The Dormant Commerce Clause was not used that way by Marshall in Willson. He said the Commerce Clause would have applied if Congress had passed an act covering blockage of navigation, but since Congress had not, then it did not apply.
The basic flaw with the Dormant Commerce Clause doctrine is that it takes the phrase: "Congress shall have power to RCATSS", and turns it into: "Congress and the Courts shall have power to RCATSS".
Without the "explanatory" phrase, there's no way the sentence could convey the thought you've imputed to it without being gramatically atrocious. My reading of the sentence doesn't have that liability. One might "explain" it another way by replacing "as" with "to be", so as to make "and was intended to be a negative and preventive provision against injustice among the states themselves." That would convey the same thought as well, but it wouldn't be your thought.
It's really too bad you don't have anything to "attach to" in 2005, but I'm sure the sentence would diagram quite well in 1829, confirming my interpretation.
The rules of good grammar are the same now as then.
"That's why this whole "dormant" commerce clause theory has no basis in original intent."
Then to what was Founding Father and Chief Justice John Marshall referring in 1829 in Willson v. Blackbird Creek Marsh Co. 2 Pet. 245 when he said:
"We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."?
I don't know what he was referring to, but he wasn't referring to original intent, as you yourself explained in the paragraph in your preceding post wherein you said that the Constitution doesn't automatically forbid a state from regulating the same commerce Congress is empowered to regulate.
"Foreseen here" means "here" in the essay that he was writing."
Bzzzzzzt! Look at the sentence: "... and has produced there the mischiefs which have been foreseen here.
The fact that "there" and "here" are used in different parts of the same sentence in no way proves that they're specifically in reference to each other. There's no reason at all why "there" can't mean "in Germany" while "here" means "here in Federalist #42". And I explained in my previous post why the context shows that that's what those two terms refer to.
Madison is saying that the practice that has produced the mischiefs there in Germany have been foreseen here in the U.S.
If it had been foreseen "here in the U.S.", it wasn't foreseen by everyone, which is why Madison had to "foresee" it in the previous paragraph, which I quoted for you. He was trying to persuade the reader that these bad things would happen here. If it had already been generally accepted, then there would have no need for him to cite the example of other countries.
We don't do it that way here. We saw what happened there. It didn't work there.
It worked well enough in Switzerland and the Netherlands. As I explained, the laws in Germany were being disrespected, not because the laws themselves were faulty, but because the political system there was too weak to enforce any of its laws. If they had tried to set up a court to which individual aggrieved principalities could apply (which who knows, maybe they did), then the result would have been the same, because there was no way the judgments could be enforced.
And in any case, you can't seriously expect that Madison intended for the supreme court to strike down state tolls, because there are toll roads all over the country, and they'll likely remain until Congress decides otherwise.
Actually we agree, if that is indeed your definition.
As long as you're reading the entire definition, not just the part you underlined.
You betcha. Assuming it's constitutional, of course.
Isn't that what Madison's letter is describing?
"The authority to decide if it will or will not be regulated still resides with Congress,"
The ultimate authority, yes, under the Supremacy Clause. But absent a federal law to the contrary, if a states wishes to regulate trade, it may, and if no one complains in federal court, they're golden.
"and the power to provide the remedy still resides with the federal government."
Yes, either Congress or the courts.
"Which says percisely nothing relevant to the issue of the power to RCATSS being used for the "positive purposes of the General Government"."
Correct. Madison did not define this in his letter.
Sure I can, if it were a state toll levied only on commerce passing through the state.
"One might "explain" it another way by replacing "as" with "to be", so as to make "and was intended to be a negative and preventive provision against injustice among the states themselves." That would convey the same thought as well, but it wouldn't be your thought."
It wouldn't be the correct thought, no.
Your interpretation has the clause just sitting there -- as though its mere presence accomplishes the intent. It doesn't. It must be used by the states in a court of law. (IF the clause were in Article I, Section 10, you'd be correct.)
It was intended to be used as a negative and preventative provision for it to have any effect.
Granted, in some cases, its mere presence in the Constitution may deter some injustice. But states retained the power to regulate (it was not removed in Article I, Section 10), and it's up to the court to say that a specific regulation is not allowed. That requires action.
This may all be moot. Let's get to the bottom line.
In your opinion, does the power to regulate commerce among the several states allow Congress to act for the positive purposes of the General Government?
Why, and by what standard is it "constitutional"? Are you looking for the Founder's original intent, or searching for "emanations and penumbras" to justify pursuit of a political agenda?
Sure I can, if it were a state toll levied only on commerce passing through the state.
The Germanic example he gave pertained to tolls of all kinds.
Your interpretation has the clause just sitting there -- as though its mere presence accomplishes the intent. It doesn't. It must be used by the states in a court of law. (IF the clause were in Article I, Section 10, you'd be correct.)
Since he said it was intended as a provision against injustice, not as a cure for it, there's nothing about my interpretation that inherently doesn't make sense: As I said before, it provided against injustice by giving Congress the means to combat it.
If your interpretation of the letter were correct, it wouldn't have made a difference if the clause appeared in Article I.10, because even an explicit prohibition against the states could only be enforced by somebody taking the matter to court.
The fact remains, however, that the phrase "intended as" could just as easily (if not moreso) be rewritten "intended to be" as rewritten "intended to be used as".
In your opinion, does the power to regulate commerce among the several states allow Congress to act for the positive purposes of the General Government?
So far as I'm able to determine, the fact that a particular measure serves one of the government's "positive purposes" is not enough to make it constitutional. But that doesn't in itself make it unconstitutional, since any measure can have any number of side effects.
He is describing the use of the power to RCATSS in order to prevent injustices among the states, explicity.
The ultimate authority, yes, under the Supremacy Clause. But absent a federal law to the contrary, if a states wishes to regulate trade, it may, and if no one complains in federal court, they're golden.
Even if someone does wish to complain in federal court, they may still be "golden". They have to show that the action of the state has created an injustice that is harmful to or discourages interstate commerce.
Yes, either Congress or the courts.
There goes you argument that the "power to RCATSS" is exercised by both the states and the federal government.
Correct. Madison did not define this in his letter.
I don't think it's necessary to "define". The meaning is clear enough. It is certain he did not say that the power was to be used for the "positive purposes of the General Government". It is apparent that he said was not to be used for that, and that apparent meaning is entirely consistent with the remaining evidence in the writings of the Founders on the subject. You still haven't shown any reason to embark upon these exploratory expeditions in pursuit of finding some intent beyond what is apparent.
Not really. The biggest issue with medical marijuana is that people wish to ingest the raw plant, preferably by smoking it. Smoked marijuana is not approved for medical use in the U.S. Marinol (synthetic THC) is approved; Sativex (Cannabinoid extracts) is seeking approval.
"not that Jamaica has had two recognized cannabis medicines for cannabis for some time."
Canasol and Asmasol are both extracts, and are approved for use in Jamaica (not FDA approved). Smoking marijuana (ganja) in Jamaica for any reason is illegal.
"My sister has MS and studies now show that cannabis can reverse damage."
Reverse the damage? You wouldn't have a link to that "study", would you? I tried Google with no luck. I know that marijuana has been touted to reduce spasticity, totally contrary to the largest study ever done -- which showed no effect.
The 1999 National Academy of Science/Institute of Medicine Report concluded that smoked marijuana does not have a role in the treatment of MS.
"Based on the studies to date, it is the opinion of the National Multiple Sclerosis Society's Medical Advisory Board that there are currently insufficient data to recommend marijuana or its derivatives as a treatment for MS."
-- nationalmssociety.org (Last updated December 2004)
"What a sad joke."
The sad joke is that the people who wish to legalize marijuana for recreational use are using the sick and dying as pawns. "Medical marijuana" is the red herring hiding their real goal. They couldn't care less about MS patients.
In your opinion, does the power to regulate commerce among the several states allow Congress to act for the positive purposes of the General Government, provided they act within the U.S. Constitution?
"Since he said it was intended as a provision against injustice, not as a cure for it, there's nothing about my interpretation that inherently doesn't make sense: As I said before, it provided against injustice by giving Congress the means to combat it."
And the states, if Congress did nothing.
The Dormant Commerce Clause does nothing unless it it used. It stops no injustice unless it is used by calling it up in a federal court. It was meant to be used.
On the other hand, an Article I, Section 10 restriction just sits there and accomplishes what it it supposed to. For example, "No state shall coin money." Pretty clear. It accomplishes what it is supposed to without having to going to court.
Therefore, Madison's phrase is best explained by the words, "and was intended to be used as a negative ..."
And the "and preventative" would encompass positive actions by Congress. This leaves the phrase "a negative and preventive provision against injustice among the States themselves" as a complete description of the power, and "a power to be used for the positive purposes of the General Government" a completely separate and excluded concept in the context of the sentence.
Regarding the power to regulate commerce among the several states, it was the Founder's intent that the states themselves rectify injustices, rather than Congress. This does not preclude Congress from acting, however, and acting in a manner consistent with the wording in the Commerce Clause itself.
That was the intent. I have no problem with that.
You start to make sense, then you fall back into your "gotcha" games. I'm not here to play "gotcha" games, tacticalogic", so cool it.
I said the injustice may be corrected by the states in federal court or by an act of Congress. It was Madison's intent that the states themselves do this, rather than Congress.
Take this post and place it in your "Favorites" folder for future reference if you can't keep things straight in your head.
"It is certain he did not say that the power was to be used for the "positive purposes of the General Government".
No. What is certain, according to his letter, is that when it comes to injustices, he would intend that the states handle that, rather than Congress. He did NOT say Congress wasn't allowed to rectify injustices.
Are you saying that Congress cannot correct injustices under the "positive purposes of the General Government"?
Correct.
and if no one complains in federal court, they're golden.
In Willson v Blackbird Creek Marsh Company, Marshall said that the Court could not independently correct an injustice. Congress had to act first.
But the measure authorized by this act [passed by the State of Delaware] stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement [injustice-kh] , unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance.
The Court found that no such conflict existed. Marshall is saying that although there may be an injustice created by a State law which impedes commerce, it is up to Congress, not the Courts, to determine whether or not to correct the injustice.
The Dormant Commerce Clause is a later invention by the Court and violates the precedent set by Willson.
It is also judicial activism in which the Court is exercising a power exclusively reserved to Congress.
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