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 poster #2 making an excellent case on why the phamaceuticals should NOT be spending millions to develop drugs using the cannabinoids in marijuana. I sure do hope you're not one of those complaining about lack of research.
To answer your question. Smoke it, if you like. But know that it's illegal.
A lot of hurdles would need to be overcome to legalize smoking as a delivery system.
Better hoard that Vioxx, LOL!
Yes, and I stand by that as an allowable condition based on what Madison said, as long as the federal government is treating all states equally.
In other words, the commerce clause does not give the federal government the power to regulate the trade of a certain state for the positive purposes of the country. If Georgia is flooding the states with cheap cotton thereby harming the cotton industries in the other states, the federal government could not add a tax, or tariff, or fee, or surcharge, (if you get the point I'm trying to make) for the positive purposes of the cotton industry as a whole.
The federal government could do this to cotton imports from another country, as Madison declared. Based on that, I believe Congress could also ban the foreign or interstate commerce of a product which has a negative purpose on the country.
I think Madison was concerned about the use of the word "regulate". If the word allowed Congress to tax imports for the positive purposes of the country, then read literally, Congress could tax/tariff the products of a state for the positive purposes of the country. He writes,
"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."
"And I'm sure you understand that in the context of his letter, that means injustice committed by state governments against other states."
Yes. And he did not want the federal government to do that either.
Thanks. Getting a little slow -- long day.
I think it was conceivable. The Webb-Kenyon Act was passed in 1913, and that was a federal statute against transporting liquor into states that wished to block its entry.
Granted, that was an interstate commerce issue, but it is evidence of a 1-8-3 power.
With a little imagination, one can justify total prohibition as Necessary and Proper to carry out the provisions of the Webb-Kenyon act.
You're reading more into his statement than what he said. He said that it was not the purpose of the commerce clause, as regards interstate commerce, to give the federal government power to regulate for the positive purposes of the country. He didn't say that Congress could do it as long as it abided by certain conditions. He said that it was not part of the power granted to it.
I think Madison was concerned about the use of the word "regulate". If the word allowed Congress to tax imports for the positive purposes of the country, then read literally, Congress could tax/tariff the products of a state for the positive purposes of the country.
As I pointed out, there would have been little reason for him to be concerned about that specifically, since the Constitution already explicitly prohibited that (no taxes on exports from any state).
But you're basically correct that he was concerned about the understanding of the phrase "to regulate trade". In his first letter, he gave a very broad definition of the term, saying that it practically synonymous with the encouragement of manufactures. He then wrote his second letter as an afterthought, saying that such an overbroad definition of the phrase should not be applied with regard to Congress's power over interstate commerce. His use of the words "negative" and "remedial", in that context, clearly apply to the nullifying of state laws that commit injustices against other states. In effect, he's saying that the power "to regulate commerce among the several states" is the power to restrict the ability of the states to regulate commerce with each other.
No less an authority than Alexander Hamilton warned against such an expansive interpretation of the necessary-and-proper clause. In Federalist #33, he gave the example of the federal government restricting the power of state governments to tax, so as to preserve its own tax base, and said that a law like that would be clearly unconstitutional. A complete prohibition on alcohol in order to assist with a prohibition of interstate transport of alcohol would be highly analogous to his example.
Good night, I'll catch up on this in the morning.
No. In this letter, he said it was not the original intent of the commerce clause to give the federal government power to regulate foreign trade for the positive purposes of the country. The original intent was to prevent or correct injustice among the States themselves.
But he does not retract the statement in his earlier letter that it was fine to regulate foreign imports under the commerce clause for the positive purposes of the country. And from that, I say that it is also fine for Congress to regulate commerce among the several states for the positive purposes of the country (or against the negative purposes to the country).
"As I pointed out, there would have been little reason for him to be concerned about that specifically, since the Constitution already explicitly prohibited that (no taxes on exports from any state)."
Fine. Then change my scenario to Madison fearing that Congress would one day use its regulatory powers to ban cotton from Georgia for the positive purposes of the country.
Wow... You're not very good at reading, are you. I never claimed that MJ was going to be good to treat the pain from shingles. Oh, and by the way... Due to the sort of "affliction" that shingles is, normal pain medications don't work all that well on many people. One rather effective treatment is with certain anti-depressants. But I suppose that you'd be against that too, since you don't think that anti-depressants should work on "pain." As you stated, I also said I do NOT use MJ, but then, I also do not use narcotic pain killers that I have Rxs for. I also said that there are documented cases of people who hace killed themselves because they couldn't deal with the pain. I also said that I've had tow of the most painful conditions a man can experience. I said that in order to present my "bone fides" on pain, if you will.
My point is a simple one... That when a person is in chronic pain, they should be able to use what ever it is that gives them the most relief.
By the way... If you ever suffered a torsion of the testicle, you wouldn't be joking about it. Imagine a blacksmith with your testicle on an anvil, and with every heartbeat, he brings his hammer down on your testicle. It's not just painful. If it's not reversed rather quickly, your testicle will become gangrenous.
Mark
Should it be legal for a 10 year old to take any narcotic pain medication?
Mark
The level of pain relief wasn't quite the same. She did get a greater amount of pain relief with the oxycontin, but she would also remain in bed for about 16 to 18 hours a day when taking it. It was an effort for her to get up and use the bathroom. She couldn't cook anything because she would constantly doze off.
With MJ, she was more able to function normally, even though she didn't get quite the same level of pain relief.
Mark
And exactly what is that cost to society? Hey, since narcotics are misused, maybe all of them should be outlawed, under any circumstances! There have been bills introduced in congress to do just that with oxycontin! Let's get rid of everything more powerful than Darvocet! That way, there won't be any drug abuse at all.
Mark
Wickard was the only "evidence" of 1-8-3 "power". Otherwise, you could say that any statute enacted under 1-8-3 was evidence of it's power.
I don't know why anyone would cheer on an obviously flawed ruling of the SC. One may be against drugs, but going extra-constitutional to do it indicates ignorance of precedent and consequences of shortsightedness.
Did you catch this? "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."
Notice the SC reasons that if wheat producing farmers themselves were to not buy wheat, it would affect the national wheat market.
The logic of the SC in Wickard is just absurd. I'd be embarrassed to support it in any way for any reason.
It's at this point that I should recall the statement you made that prompted my initial response to you herein: "Do you believe the Founding Fathers would give Congress the power to regulate interstate commerce, yet allow the individual states to undermine and subvert their regulatory efforts?" Since it wasn't their intent to give the federal government power to place actual restrictions on commerce subsisting between states, it would follow that it also wasn't their intent to give the federal government power to restrict that which would allegedly undermine an attempt to restrict commerce subsisting between the states.
The actual exercise of a power may or may not have to conform to the original intent - that's debatable at least. But measures which are "necessary and proper" for carrying into effect a particular power would, among other things, have to be consistent with the reason for which the power was granted.
And from that, I say that it is also fine for Congress to regulate commerce among the several states for the positive purposes of the country (or against the negative purposes to the country).
So if I understand you correctly, you're saying that although it wasn't part of the original intent for Congress to regulate commerce among the several states for the positive purposes of the country, Congress nevertheless has that power. In that case, there was little point to Madison's second letter, beyond raising a matter of mere historical curiosity. I think Madison's reason for bringing it up was more than purely academic. That's the impression I get, anyway.
"As I pointed out, there would have been little reason for him to be concerned about that specifically, since the Constitution already explicitly prohibited that (no taxes on exports from any state)."
Fine. Then change my scenario to Madison fearing that Congress would one day use its regulatory powers to ban cotton from Georgia for the positive purposes of the country.
But there's still nothing in the letter that shows his concerns to be that Congress might unjustly discriminate against one state. Of course it would be unconstitutional if it did, but nothing indicates that that's the limit of his concern. He said that it wasn't the original intent for Congress to be regulating interstate commerce for the positive purposes of the federal government. Now either that statement reflects on the actual legal meaning of the commerce clause, or it doesn't. If it doesn't, then it can safely be dismissed altogether as mere historical reminiscing. If it does, then it means that Congress does not have the power to regulate interstate commerce for the positive purposes of the federal government. It's one or the other.
"Torsion and the Gangrenous Testicles" would be an ever better name for a band.
I do not care what people take for their pain or their illness. I really don't.
Just two things. One, be willing to accept the consequences for your actions (ie., don't come cryin' later that you were arrested, or that you were ripped off by some overseas pharmacy or clinic, or that you were injured by the medicine, etc).
Two, do not ask me to condone, support, sympathize, or vote for the legalization of, your drug of choice.
I do not object to people taking any FDA approved medicine in the dosages prescribed by their licensed doctor and obtained through a licensed pharmacy. Whatever made you think I did?
Yeah, I can see that.
"A complete prohibition on alcohol in order to assist with a prohibition of interstate transport of alcohol would be highly analogous to his example."
How about, "A complete prohibition on alcohol in order to assist with a prohibition of interstate transport of alcohol would be highly analogous to the 1968 GCA and the 1994 AWB. (Ooh. robertpaulsen hits a home run.)
The 1994 AWB was challenged on commerce clause grounds by Navegar and Penn Arms, but the USSC rejected it without comment.
A statute banning alcohol would have worked.
That happens to be a controversial subject right now, but not for the reason you think.
Drugs are tested on adults. Many studies do not include children. So it's more a lack of data than anything else.
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