Posted on 01/22/2004 1:16:20 PM PST by blitzgig
The restless ghost of Roscoe Filburn has returned. A good thing, too. Filburn was the spunky Ohio farmer who challenged the U.S. government in a famous case 60 years ago. Now his case figures in the plea of two seriously ill California women. They have sued for the right to obtain marijuana on a doctor's recommendation. Filburn lost, but the women so far are winning.
The plaintiffs are Angel McClary Raich and Diane Monson. Two years ago they brought suit against Attorney General John Ashcroft, seeking an injunction to forestall their prosecution under the federal Controlled Substances Act. The act defines marijuana as a Schedule One substance with a "high potential for abuse." Congress has found that marijuana has "a substantial and detrimental effect on the health and general welfare of the American people." Moreover, "it has no currently acceptable medical use." So says Congress.
The experience of the two women is to the contrary. Raich suffers from an inoperable brain tumor. She has tried 35 approved medications for relief of seizures and constant pain. None of them has worked, but marijuana has been a godsend. Two friends have grown cannabis for her without charge. They use "only soil, water, nutrients, growing equipment, supplies and lumber originating from or manufactured in California."
Monson suffers from severe chronic back pain and recurring muscle spasms. Traditional medications "have utterly failed." Desperate for relief, she began growing marijuana solely for her own use. In August 2002 the sheriff of Butte County, joined by federal agents, raided her home. They seized and destroyed her six plants but have not filed criminal charges against her.
In 1996 California adopted its Compassionate Use Act. The law ensures that seriously ill Californians have a right to obtain and use marijuana for medical purposes on the recommendation of a physician. Coverage is broad. The law applies to cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, "or any other illness for which marijuana provides relief." Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have adopted similar laws on medical use.
In U.S. District Court, Judge Martin J. Jenkins denied the two women's petition for a preliminary injunction. They appealed to a three-judge panel of the 9th Circuit. Judge Harry Pregerson, joined by Judge Richard A. Paez, came down emphatically on their side.
To be sure, Pregerson acknowledged, in at least six cases in recent years the 9th Circuit has supported the government's reliance on the Controlled Substances Act. But the women's case, he noted, is significantly different in kind. Other defendants were charged with involvement in the national traffic in drugs. The women's supposed offense rested in the intrastate, noncommercial cultivation and possession of cannabis for medical purposes. The marijuana at issue in this case "is not intended for, nor does it enter, the stream of commerce." The case does not raise the same policy concerns that go with the market in illicit drugs.
Judge C. Arlen Beam of the 8th Circuit, sitting by designation, dissented. And here we get back to Roscoe Filburn on his small farm in Montgomery County, Ohio, 60 years ago. Filburn had been given a wheat marketing quota based on 11.1 acres. Instead he harvested wheat, entirely for his own family purposes, from 23 acres. None of the wheat was ever in interstate commerce, but a unanimous Supreme Court ruled that Filburn's 239 bushels contributed inexorably to the national aggregate of wheat harvested in 1941.
Said Judge Beam: "It is simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop in Filburn." He added, "If Congress cannot reach individual narcotic growers, possessors and users, its overall statutory scheme will be totally undermined." He regretted a result that might seem "unduly harsh" for seriously ill persons, but he could find no distinction as a matter of law.
I thought the Supreme Court was wrong -- unanimously wrong -- in ruling against Roscoe Filburn in 1942. I believe Judge Pregerson is right -- clearly right -- in holding that the growing and use of a plant for clearly medical, personal, noncommercial purposes is beyond the reach of Congress under the Commerce Clause. I hope Attorney General Ashcroft will drop the case and let the two plaintiffs go literally to pot.
More than likely, this will go to the full 9th Circuit and stop there. Congress doesn't recognize smoked marijuana as medicine.
Nor should they.
Speaking of which, there's a lot of pipeweed happening in those Lord Of The Rings movies...
Filburn's case created a huge loophole in the Constitution, by allowing Congress to regulate goods and services that NEVER CAME ANYWHERE NEAR A STATE LINE. In short, Congress' power over "interstate commerce" was amended to mean power over all commerce, whether or not it was interstate.
This is the first case in a long time where I agree with the Ninth Circuit and consider the Supreme Court dead wrong. However, I have zero hope that this case will be affirmed by the Supreme Court, if it is taken there.
Congressman Billybob
And some alleged "conservatives" lap up this FDR-court perversion simply because it can be used against Demon Weed. <spits in disgust>
Or alcohol. Don't hold your breath waiting for a sane explanation.
See post #3 - our old friend rp.
700,000+ arrests of Americans annually for marijuana "crimes", when there's been much more important things for law enforcement to worry about since 9/11/2001. Sad.
Yes and no. He left out the fact that Filburn was free to grow as much as he wanted provided he paid the fine as outlined in the original legislation.
Keep in mind that the legislation propped up the price of wheat -- but only if the supply were restricted (kinda like OPEC).
Mr. Filburn wanted his cake and to eat it, too. He accepted the increased price for his wheat, then produced more that was allowed. If he would have paid the fine on the excess wheat, he would have been OK.
Now you tell me. If there were 100,000 Mr. Filburns, each producing excess wheat (the excess for their own use), would this "intrastate" use have an effect in interstate commerce? Would this have undercut the legislation?
Damn straight it would. Don't tell me that stictly intrastate commerce does not have an effect on interstate commerce.
Personally, if I were Wickard, I would have said to the farmers, "You don't like the government telling you how much you can and can't produce? You want to produce all the wheat you want? Be my guest. Let's see how you live on $.40 per bushel (world market price at the time) vs. $1.16 (what the federal government was paying under the Agricultural Adjustment program).
I forget the exact percentages, but roughly half of the federal drug budget goes to drug education and treament and half to drug interdiction, mostly along the borders.
So I guess you're saying that we should do away with drug education and treatment and put that money on the border? You almost have me convinced.
Of course it has an effect---but the Constitution does not give the feds authority over that which affects interstate commerce, just the interstate commerce itself.
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