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.
Here's a guy that went to Federal Prison for his beliefs. Check out his sites:
http://www.ahemp.org/BEPress.html
http://www.smartvoter.org/2003/10/07/ca/state/vote/smith_b/paper3.html
http://www.smartvoter.org/2003/10/07/ca/state/vote/smith_b/paper1.html
He's saying considerably more than that. The Constitution already explicitly prohibits the federal government from taxing one state to favor another. Madison's saying that the commerce clause, as it applies to interstate commerce, was not designed to be used "for the positive purposes of the general government" - exactly the opposite of what you said at #106.
Sorry, your diatribe is not worthy of a response.
I think I agree, but I'm not entirely sure what you're saying. If you mean to say that it's nobody's business what you ingest if you're not endangering others I agree.
What can't you conduct studies the same way you would for any other substance? Obviously a double-blind study would be difficult as the smell is so distinctive - it would be tough to find an inert placebo substance, though you might be able to find a group that honestly didn't know what the real stuff smelled like so they could be more easily fooled with a substitute. Still, there are ways of conducting a study just as with any pain-relieving drug: Visual analog scales, functional scales, and the like. Weight gain is also an objective finding - take any group of people on a specific chemo drug and have half of them smoke and see what the weight gain or loss is.
What sort of scientific background do you have, BTW?
huh? Been smokin' some yourself?
Are you also one of those who doesn't believe legitimate drugs should be used to alleviate discomfort in any form? That antidepressants are a crutch? That narcotics only relieve pain and therefore dull the reality of the human condition?
Better living through chemistry (and agriculture if need be). No, I don't want my kids smoking it to get high - but if it relieves someone's discomfort, even ANECDOTALLY, while undergoing chemo, why deny them? I'm not a fan of quack remedies, but I don't see the need to ban them. And hey, if magnets really make you feel better, go for it. A lot of medication is prescribed for subjective reasons and discarded/discontinued for subjective reasons.
Actually, I don't want it legal either. I was just throwing out some things absoluting neccessary if it does become legal.
Thank you for your comments.
John
Not at all; I'm speaking directly to your point.
If you're going to compare the benefits of ending alcohol Prohibition to ending drug prohibition, then you have legalize all drugs.
Nonsense. Marijuana is recognized by many as being relatively benign in its effects on society. Not harmless, certainly, but its deleterious effects hardly justify the expenditure of finite public safety resources spent to curtail its use. From what I've seen, the probation/fine/asset seizure gravy train enjoyed by municipal administrations is the more likely motivation.
Legalizing just marijuana is equivalent to legalizing just wine during Prohibition.
Again, nonsense. Just because you say it doesn't make it so. Anyone with a brain can see that marijuana is utterly different in its effects on individuals, and by extension, society, than, say, crystal meth. Not to mention their completely different chemical composition.
Drinking a half gallon of wine does not produce any substantially different result in the drinker than does drinking a 12-pack of beer, or a fifth of whiskey.
ROFLMBO...
Really? A six-pack of beer (72oz) at 4.1% alcohol contains about 3oz alcohol. A half-gallon of wine (64oz) at 7% alcohol would be 4.5oz alcohol. A fifth of whiskey (25.6oz) at 40% alcohol would be 10.24oz alcohol. I would think the physiological effects of the latter would be quite different from the former.
Oops... I just notice you said 12-pack (for some reason I'd read 6-pack). That probably puts the results into the same ballpark depending upon the exact varieties of beverages involved. Nevermind...
Well, my point was that the active ingredient in all of the beverages specified is the same. I just winged the equivalent amounts off the top of my head. Alcohol is alcohol, drunk is drunk.
Ummm... Alaska? What is there to do in Alaska when you're a teenager? I'd rather have them stoned than drunk off a cheap case of PBR. Which group would be more violent and have more of a chance driving wasted?
In this letter, Madison is defining the original intent of the commerce clause and comparing it to the way he proposed that it be used in his previous letter where he suggested using the commerce clause against foreign imports for the positive purposes of the country.
The commerce clause was to be used to prevent or correct injustice among the States themselves. Even modern day interpretations of the commerce clause honor this original intent.
You pop up into the thread like a Whack-A-Mole, make some generalized disparaging remarks that have nothing to do with the subject of the thread, then disappear when challenged.
My definition of a troll, troll.
Yes, nothing in that paragraph contradicts what I said. But it very starkly contradicts what you said at #106. There, you said that the power over interstate commerce could be used for the positive purposes of the country.
The commerce clause was to be used to prevent or correct injustice among the States themselves.
And I'm sure you understand that in the context of his letter, that means injustice committed by state governments against other states.
1-8-3?
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