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.
Get rid of the nanny state first, then I'm willing to discuss the legalization of drugs.
They tried that in Alaska, actually. Up to 4 ounces, in your home only, was legal for adults.
Then the University of Alaska did a study in 1988 and found that twice as many Alaskan teens were using pot as the lower 48. The parents went ape, pushed for and passed a public referendum in 1990, and made pot illegal again.
Teen use dropped to that of the rest of the country. Maybe you don't care. I do.
In my post #108, I listed some functions of the nanny state: The Department of Health and Human Services, the Department of Education, the Department of Commerce, the National Endowment of the Arts, the National Endowment for the Humanities, the Department of Agriculture, the Department of Housing and Urban Development, the Department of Transportation, for starters.
If people are willing to rid thenselves of these agencies, then perhaps they're willing to take on personal responsibility. As I said, then we can talk about drugs.
You legalize drugs first, you're just going to add people to the welfare and healthcare systems and we'll never get rid of those federal agencies.
Wickard is an insult to personal property or any reasonable view of the power of government to regulate trade. Frankly, I think the Constitution should be amended to take the power to regulate intrastate commerce away from Congress. I understand the reason for its original inclusion, but it has been of virtually no benefit and an unimaginably large source of mischief.
Glaring omissions from your nanny-state list: the Drug Enforcement Agency and the Office of National Drug Control Policy, i.e. the "Drug Czar".
Neither of which have any constitutional basis for their continued existence, just like the others you mention.
Let me guess. You think those agencies should be the first to go.
How was the study performed? Many people who use illegal substances aren't likely to report them to someone conducting a survey.
interesing analysis. I'm no lawyer, but I'd say the Supreme Court was wrong in the Wickard case. How can the Federal Government tell people what they can and can't grow on their OWN land?!?!
How can the Federal government tell citizens what they put in their OWN bodies??!!?!?!
That's teh direction I would approach this case from.
"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."
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GOOD IDEAS!!!!!!
This is true, because , as you stated, some states have already decriminalized it. IMO, prohibition on MJ doesn't work , in the same way that it did not work for alcohol.
i go with legalize.
moderation moderation and dont drive.
has anyone ever seen the government ,either, produced or sanctioned movie REEFER MADNESS? what a hoot.
and there is a group of record albums called
them dirty blues, one of them is tunes with all drug references with some mighty big names in big band music singing them.
FWIU, the Supreme Court is very loath to reverse itself, but is less loath to issue rulings which change the effect of earlier readings but are nonetheless consistent with them.
For example, a compelling part of the argument in Filburn was that by growing his own wheat, the farmer was depriving a would-be seller of a buyer. Even if the farmer would not have personally bought wheat from out of state, his failure to buy the wheat would have shifted (by the amount of wheat in question) the supply/demand balance within his state and thus affected interstate commerce.
The argument doesn't work in the pot case, however, because there is no legal interstate market. Although it is certainly possible that growing pot within the state for immediate in-state consumption might cause people who might otherwise have done so to stop buying out-of-state pot, it would be hard to argue that their failure to buy out of state pot was somehow a bad thing.
if you link this subject of medicinal maryjane as an evil soros plot and therefore not worthy to persue, then by that logic the DUmmies ,Cheney/haliburton ,rants could be said to have merit?
it's late and i may have missed your point.
and or i'm not making mine clear.
sorry, I meant to say I would not approach it from the Filburn angle. (although I agree with your analysis)
I would approach it from the angle that the United States was the first country to take away power from the King (divine right of king = the king has his power from god by law). The US eliminated the middle man (the king) and gave each person the divine right of kings power for his own property. Thus - every man a king. Remarkable.
William Pitt said in a speech to the British Parliment (explaining this new American idea):
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter -- but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!"
If every man is a king on his own property (as enshrined by the Constitution) then it follows that the man may grow what he will and injest what he will with no one to answer to but whom he recieves his 'divine right from' - ostensibly God.
Now, I don't know how to frame that legally, but thats what I meant. :)
I am about as right-wing a Christian as you can get, and I am emphatically for allowing states to determine whether or not to legalize the prescribing of marijuana for medical use.
I had cancer a few years ago, and while I didn't require any special pain/nausia medication, I understand that some people would benefit greatly from MJ.
Those who are against MJ for medical purposes don't understand how powerful physician-prescribed medicines are....
The federal government will cite Filburn. Anyone supporting California must therefore argue that (1) Filburn is wrong, or (2) Filburn does not apply. One may make other arguments as well, but if Filburn can be used to bind this case it will.
"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."
"The history of the world is not intelligible apart from a Government of the World" W. V. Humboldt
For history's sake remember the founding fathers grew this plant on their estates. Of what clan are you, the fight club? Much medicine's source is plant life, as well as our diet. What plant shall we war against next when we are finished eradicating this wonder from the face of Earth? What gives this government, or any government the power to eradicate a gift from God? Is it the power of the increasingly inept oligarchy of Doctors and corporate chemists which you desire to maintain?
You can't see the absurdity of your question which has nothing to do witn the matter at hand? It is a perfect reason why I don't argue with WOD drones anymore.
That doesn't deserve and answer.
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