Medical marijuana: The real stakes

TownHall.com ^ | 12-10-04 | Jeff Jacoby

[inquest]

This is my problem with this type of constitutional analysis: There's nothing in the Constitution giving states the power to define the limits of federal law. If federal law has overreached, then it's unconstitutional and invalid regardless of what state law says. If it hasn't overreached, then it overrides state law to the contrary. Either way, state law is irrelevant, and should never be treated as in any way relevant.

[AxelPaulsenJr]

LeRoy would be so proud. LeRoy you out there, what is your current screen name? Lost track of you after "No King but Jesus".

[Pinetop]

I was at the argument and there was quite a bit of discussion on the effect of this law on marijuana prices throughout the country. Also the California statute is so loosey-goosey. I think it's basically NORML at work.

[E. Pluribus Unum]

There's nothing in the Constitution giving states the power to define the limits of federal law.

 1. Powers of the Federal Government - Delegated Powers

• The federal government possesses all those powers that are delegated to it by the Constitution either expressly or by implication. These powers are enumerated principally as powers of Congress in Article I, Section 8. Included among these are the power to tax, borrow and coin money, maintain armies and navies, conduct foreign relations, and regulate interstate and foreign commerce. After the enumeration of powers in Article I, Section 8, the Constitution grants Congress further authority to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof." This general grant of implied powers in the "elastic" or "necessary and proper" clause of the Constitution has raised numerous questions as to the actual scope of national authority. In many instances, such questions have been resolved by the Supreme Court.
• Despite the fact that the states are supreme in their sphere of activities, the federal Constitution and national laws constitute the supreme law of the land when conflicts arise from attempts of both jurisdictions to govern the same subject matter. The supremacy of national authority is indicated by Article VI, clause 2, of the Constitution, which provides as follows:
• This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

 
2. The Powers of the States - Reserved Powers
• The Tenth Amendment indicates that state governments possess those powers that are not given to the national government or prohibited to the states. Among others, the states have the power to establish schools and supervise education, regulate intrastate commerce, conduct elections, establish local government units, and borrow money. In addition, a broad and generally undefined "police power" enables the states to take action to protect and promote the health, safety, morals, and general welfare of their inhabitants. The states also exercise powers relating to wills and domestic relations.

3. Powers shared by both - Concurrent Powers

• Concurrent powers include the power to tax and borrow money, to take property for public purposes, to enact bankruptcy laws, and to establish laws and courts.

[evad]

I have never heard a reasoned argument against marijuana use for medical purposes.

It always winds up in some kind of flaming war.

[Phantom Lord]

MJ should be legal.

[conserv13]

Why doesn't the federal government just decriminalize marijuana possesion (importing it or transporting across state lines could still be illegal)?

Drug prohibition is a ridiculous criminal joke that is destroying America.

[NJ_gent]

"There's nothing in the Constitution giving states the power to define the limits of federal law."

There's no reason for states to define limits to Federal authority; that's the Constitution's job. If the Constitution doesn't give a power to the Federal government, then that power is reserved for the people or the states. Control over interstate commerce was granted to the Federal government. Control over intrastate commerce isn't among the Federal powers enumerated by the Constitution, and is thus reserved to the people and/or the states, as per Amendment X.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Reaganghost]

Maybe its time to start thinking about a Constitutional convention as a way to rein in the Federal Government. The Supreme Court has rewritten much of the Constitution expanding the powers of the Federal government far beyond anything that is rational.

[VaBarrister]

I'm really surprised the justice department is taking the approach that it has taken. This would be the perfect opportunity to lobby for Wickard to be limited.

[bassmaner]

rp and tl: pinging you to this thread to discuss the Wickard case, which is the basis of the "substantial effects" interpretation of the Commerce clause.

[Aegedius]

If the federal government had the power to prohibit sales of marijuana, then there would have been no need for the 18th amendment (which prohibits the sale of alcohol,and was repealed by the 21st amendment).

[Wolfie]

This is a slam dunk, really. No way the SC will go against the Feds on this one. On the bright side, it'll be fun watching all the "conservatives" bitch and moan about the newly restored Commerce Clause when it bites them in the backside somewhere down the road.

[inquest]

If there was support for a new constitutional convention to rein in the federal government, then there'd be support for reining in the federal government with the existing Constitution. A constitutional convention today would more than likely do the opposite of reining it in.

[OneTimeLurker]

Once Ashcroft is gone maybe they will ease up. Too late for Chong though.

[bassmaner]

Drug prohibition is a ridiculous criminal joke that is destroying America.

Amen.

Drug prohibition is at its core a utopian social-engineering agenda that contradicts a fundamental reality of human nature. We've had 30+ years of the so-called "War on Drugs" and "illegal" drugs are more plentiful than ever, despite the fact that there are 500,000+ prisoners in the U.S. in jail for drug "crimes".

Memo to Drug War-supporting conservatives: utopian social-engineering agendas are the stock-in-trade of the socialist left, and are eternally doomed to failure. Even ex-Drug Czar Barry McCaffery once admitted that we would never be able to "jail our way out of the drug problem". It's time to admit that the best solution is the market solution: legalize, tax, and regulate, get the federal government out of the drug prohibition enforcement business, and leave regulation up to the states like it is for alcohol and tobacco.

[robertpaulsen]

"I have never heard a reasoned argument against marijuana use for medical purposes."

The arguments are mainly against "smoked" marijuana for medical purposes.

To reduce the intraocular pressure caused by glaucoma, it would require smoking 10 joints/day, every day. But any form of marijuana for glaucoma, however, is contraindicated due to its negative effect on the optic nerve.

No major medical association supports smoked marijuana for medical reasons. None.

One other little ditty for you. 99% of medical marijuana patients (in a California survey) were already smoking marijuana for their "condition" prior to seeing a doctor. Their doctors were not recommending marijuana -- they were simply authorizing it.

The "condition" in 2 out of 3 cases? Pain.

[robertpaulsen]

"Why doesn't the federal government just decriminalize marijuana possesion (importing it or transporting across state lines could still be illegal)?"

First, I think you mean "legalize" not "decriminalize". Decriminalization means that marijuana is still illegal, but the offense is reduced to a civil misdemeanor with usually a small fine. Some states have decriminalized.

You're looking to turn the legalization decision over to the states and leaving the federal government out of it (unless, as you say, it crosses our borders or state lines).

The 21st amendment, Section 2, did exactly that for alcohol. I would suggest that we get a similar amendment for drugs if we want to go down that path.

[gieriscm]

On the bright side, it'll be fun watching all the "conservatives" bitch and moan about the newly restored Commerce Clause when it bites them in the backside somewhere down the road.

Hey, this conservative is pulling for Raich, because I understand that it will also affect the Stewart case, which involves homemade NFA firearms.

For your reading pleasure - transcript of the USSC Raich case oral arguments

[TKDietz]

Of course the state laws are relevant. Federalism is all about power sharing. The feds were to control certain things governments have a right to control in this country and the states the rest. The question in cases like these is who has the right to control a particular activity within a state, the state, the feds, or both? One of the determining factors in these commerce clause cases is whether the activity involves interstate commerce. The way the state laws are written can play a very important role in making this determination. If a state wants to allow something and has narrowly tailored state laws that discourage interstate commerce in thing or activity, then those laws are relevant in the determination of whether the activity involves interstate commerce. Just because something is relevant in a legal sense does not mean it is necessarily determinative, but it is useful in the analysis.