Posted on 12/17/2004 9:12:14 AM PST by inquest
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.
The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with an awful array of diseases, including tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was again able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.
But under the federal Controlled Substances Act of 1970, the possession of marijuana for any reason is illegal. The question for the court is which law should prevail in this case: state or federal?
Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Does Congress have the right to criminalize the possession of minuscule amounts of marijuana, not bought on the illicit drug market, and used as medicine?
Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?
According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.
The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, for his family, some he fed to his livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?
But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.
Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, in fact, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.
But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
How does it follow that it is then medicine for everyone? Anecdotal stories do not form the foundation of our medical and medicinal system.
We do peer-reviewed studies. We use control groups, placebos. Reports are written, studied, duplicated. The dosage is known. The frequency of the dosage is known. We know about side effects and drug interactions. The drug is then FDA approved.
It's just a little more than "I smoke doobah. Doobah good".
Criminy. We live in the most medically advanced nation in world history, and you're taking us back to Clan of the Cave Bear where we're chewing on roots and dancing naked in the moonlight.
Do you have anything of any historical consequence? A quote by someone else agreeing with you, without providing any basis for how that conclusion was arrived at is no more autoritative than your own opinion. Can you provide any reference to the nature and scope of the Necessary and Proper clause from the founders that indicates that this is indeed an valid exercise of that power?
The source of his logic is a fear that his children might smoke pot some day, and an absence of scruples about what he'll do to keep that from happening.
>>The source of his logic is a fear that his children might smoke pot some day, and an absence of scruples about what he'll do to keep that from happening.<<
The out of context quotes from cases and the use of law review articles is really building his credibility though....
Key words. Injustice among the states meant that some states benefitted, some didn't.
I, too, would oppose any federal legislation which did this or which allowed this.
But legislation which bans the commerce of a product between all states for "the positive purposes of the General Government" is, of course, allowed.
Vioxx. *cough cough*
"Until several weeks of negotiations with the Connecticut Libertarian Party over its pro-drug legalization stance, my position on drugs was to refuse even to discuss drug legalization until I don't have to pay for the food, housing, transportation and medical care of people who want to stay home all day shooting up heroin."
"It's not as if we live in the perfect Libertarian state of nature, with the tiny exception of those pesky drug laws. We live in a Nanny State that takes care of us from cradle to grave and steals half our income. I kept suggesting to them that we might want to keep our eye on the ball here. (The Libertarians' other big issue is privatizing Yosemite. Seriously.)"
"In theory, our areas of agreement should have included, among other things: eliminating the Department of Health and Human Services, eliminating the Department of Education, eliminating the Department of Commerce, eliminating the National Endowment of the Arts, eliminating the National Endowment for the Humanities, eliminating the Department of Agriculture, eliminating the Department of Housing and Urban Development, eliminating the Department of Transportation, eliminating the progressive income tax and instituting a flat tax."
"Our sole area of disagreement was whether to abolish the drug laws before or after completing the above tasks."
And I say after.
"In illustration of their argument, gentlemen have supposed a strong case; a prohibition of the future cultivation of corn, in the United States. It would not be admitted, I presume, that an act, so extravagant, would be constitutional, though not perpetual, but confined to a single season. And why? Because it would be, most manifestly, without the limits of the federal jurisdiction, and relative to an object, or concern, not committed to its management."
And all of this "pot IS medicine" nonsense is a smoke screen for marijuana legalization.
As admitted by the leaders of this movement.
Not on your best day.
Here comes the dance.
You would do better to quote yourself.
So I ask you again, You have no problem with anyone using any substance they want as long as they take the responsibility?
RE-legalization of all substances and therefore the return of liberty is the goal of all true Americans.
I have never hidden my agenda. I don't dance around the real issues like the authoritarian elitists.
Yep. He gets positively illuminating when you start talking about applying that dogmatic reliance on stare decisis to Roe v Wade.
"by reason of their control of the carriers" was the necessary nexus which allowed the court to rule as it did.
The court was saying that because there was a connection, a relationship, between the interstate and intrastate rates by a carrier, Congress could step in a regulate the overall rates. The predecessor to "substantial effects" if you will (the court used "substantial relation").
Sign me up.
I would gladly sign a document swearing off any current or future Govt assistance if the Govt would simply leave me alone to pollute my body with whatever I want.
I understand where you are coming from but we don't have prisons full of gay's and we don't spend billions trying to keep people from becoming gay.
It costs too much to worry about pot. The idea would be to allow it in private homes but not in public. No pot bars, no pot sales at the grocery store,etc. If you have a car wreck while high it should be treated like a dui.
Actually the losers who smoke pot will eventually end up in the criminal justice system sooner or later for other reasons and the ones who don't, well no harm no foul.
John
John
Not until you do something for a change. Other than constantly asking me to provide you with proof, links, studies, cites, etc.
Nope. They said:
"by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce"
The relationship between intrastate and interstate commerce is irrelevant. The only relevant relationship is between the carriers and interstate commerce - in all matters, intrastate or otherwise.
Can't, and won't admit it.
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