Medical marijuana: The real stakes

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

[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.

[robertpaulsen]

"Because according to Madison's writings, that is outside the scope of the commerce power that was given to the federal government."

Just the opposite. Madison said Congress could do that with foreign nations, didn't he? He said "regulate commerce with foreign Nations" (from 1-8-3) gave Congress that power.

But you're telling me that, in the same Section of the Constitution, "regulate commerce among the several states" means something completely different?

OK. Where's the proof of that?

[robertpaulsen]

"You seemed to ignore the response"

I'm sorry. Did you provide proof?

I did ignore your response that included phrases like "is still subject to debate", and "Some researchers think so".

Did the Founding Fathers grow hemp? No doubt. Was that hemp occassionally smoked? Probably, I would guess. But that wasn't my question.

[William Terrell]

They did. Let's break down your sentence.

Let's don't, really. You know what I'm saying. You're trying to parse your way out of it. But, since you will attempt that anyway, let's take it on.

"To. . .regulate, or prohibit". Hmmmm. "Regulate" includes "prohibit, so that's redundant.

   Prohibit.

   To forbid by law;  to prevent; - not synonymous with  "regulate."

   Black's Law Dictionary, 6 Edition

The police power in the US is very specific. Rights may be regulated but cannot be prohibited by that regulation.

"any Substance, Item or Activity". Well, that's "commerce".

I scrape some horn-worm droppings off my tomato plants, that's a substance. I bake a clay pot from scrapings from a clay bank to decorate my mantle, that's an item. I dig a hole in my back yard, that's an activity. None of which have anything to do with commerce.

"to the People". That would be "among".

No, that would be "to", "the People" being the objects of the predicate. ". . . considered to be detrimental among the People of the United States." Makes no sense, does it.

"of the United States". That's "the several states".

Since the 14th amendment, it is "the people of the United States" because the 14th amendment awards citizenship at the federal level instead of the state level. Prior to that, it was "among the several states".

Doesn't change the salient meaning, however, either way.

So now, what do we have? "The Congress shall have the power to regulate commerce among the several states" There you go.

Excuse any typographical errors; I find it hard to type while laughing so hard.

The point you are trying to avoid is, why didn't the framers, if they wanted Congress to exercise prohibitionary power over individual actions and possessions, state it so up front, in plain words in the Constitution. They certainly could have; each of each branch's powers are clearly defined n plain words.

[tacticalogic]

In his second letter to Cabell.

[freepatriot32]

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

Ok I'll make a deal with you.I will come over to your house every day at 1 pm and kick you really hard in the gonads with steel toed boots and on days when my foot is to tired I will bring over an nfl field goal kicker to do it for me and when you expierience a great deal of "pain" the only thing i will allow you to take for it is 100 mg of asprin.To make sure your not cheating and taking something stronger I will force you to drop trough and pee in a cup to prove that you arent taking anything stronger. (If you have nothing to hide you wont mind peeing in a cup right? oh yeah I might have to bring someone over to watch you do that to make sure its your own urine)If I find that you did take something stronger then the asprin that I so generously and compasionatly "allowed" you as an amaerican citizen to take I will have armed goverment agents break down your door at 3 am and point full auto machine guns at your familys head and take every bit of property from you under the asset forfiture laws justto teach you a lesson to never ever under any circumstances disagree with the fed gov on anything.After you go through all of this for a few months you can get on your high horse and tell everyone how to best deal with thier pain and how to live thier lives in a "free" society.So do we have a deal or not ?

[TKDietz]

"Dr. Burke, president of the American Historical Reference Society and a consultant for the Smithsonian Institute, counted seven early presidents as cannabis smokers: George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Zachary Taylor and Franklin Pierce. 41 "Early letters from our founding fathers refer to the pleasures of hemp smoking," said Burke."

Some of the things you are saying are true and it may be that some of these people did use marijuana for its intoxicating effect, but there is no "American Historical Reference Society" and this Dr. Burke guy doesn't exist. This is a hoax. You'll find these bogus footnotes quoted all over the internet but you won't find the book this man supposedly wrote, because like its imaginary author, it doesn't exist. Look into it, you'll see what I'm talking about.

[robertpaulsen]

I worked real hard trying to twist your words -- glad you appreciated my effort.

My thought is that they didn't want to clutter it up with something like, "Congress shall have the power to regulate, encourage, restrict, prohibit, tax, tariff, limit, assist, ... commerce"

Like everything else, their words are left to interpretation (What is an "unreasonable" search? What are "arms"? What is a "speedy" trial?).

As early as 1807 (when the Framers were still around), "to regulate" included "to prohibit".

"''Jefferson's Embargo'' of 1807-1808, which cut all trade with Europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts ...".

This link is actually quite interesting and would probably answer your questions.

[robertpaulsen]

So you believe that two out of three patients in California who went to see their doctor for their "medical" marijuana recommendation, 99% of them already smoking marijuana even before their first doctor visit, were really in intractable pain that 100mg. of aspirin wouldn't cure?

BWAHAHAHAHA! Oh, (wiping tears from eyes), oh, freepatriot32! Oh, you're funny.

[robertpaulsen]

Nope.

[robertpaulsen]

Thanks, TK. I predict he'll be a short-timer on the drug threads with cites like that.

Hey, do you have a link for current state-by-state teen marijuana use? I told ole MrLeRoy that I believed Alaskan teen use rates have dropped to about the level of teen use rates in the lower 48.

[William Terrell]

My thought is that they didn't want to clutter it up with something like, "Congress shall have the power to regulate, encourage, restrict, prohibit, tax, tariff, limit, assist, ... commerce"

I utterly destroy your attempt to parse away a question that you cannot answer, then you come back with an even more diluted argument.

The framers were quite plain in their intentions that the federal government be federal with very limited national powers. The only powers in Article 1 Section 8 that directly apply to the activities of individuals (that is to say, a national application) are clause 6 and 10.

Many people on these type threads have posted to you over and over the very words of the framers on the federal governments national jurisdiction and the intended purpose of the commerce clause.

Yet you still push this flawed SC reasoning.

The fact is that the substantial effects doctrine means Congress can prohibit any substance, item and activity because all those can be related to interstate commerce in some way. SC justices have said this in those same words.

The fact remains, if the framers wanted the federal government to have these powers, they would have specified them in plain words. Clutter? An additional sentence would have "cluttered" the federal constitution? 19 clauses in section 8 instead of 18 would "clutter"?

Weal arguments. Very weak.

What can be said of one who is so prejudicial against an individual choosing his state of mind and body that he will subvert the foundation of our law and the limitations on governmental bodies to accomplish it?

[tacticalogic]

Nope.

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government"

Sure looks like it to me. So far you're the only one here that can't seem to comprehend it.

[TKDietz]

http://www.oas.samhsa.gov/2k2State/html/appA.htm#taba.2

[TKDietz]

http://www.oas.samhsa.gov/2k2State/html/appA.htm#taba.2

But as we've discussed before, these numbers are not really comparable. The study you talk about was one that the University of Alaska did. You can't find any info on it on the net. What they probably did was send some college kids out to interview several teens or did it by phone and then compared those numbers with the national NHSDA numbers. We don't know what ages the teens were that were surveyed in the University of Alaska study. If they weren't surveying 12 to 17 year olds then the results are really going to be skewed because older teens are much more likely than younger people to be current users of marijuana. I wouldn't trust the University of Alaska numbers at all without knowing the specifics on how their survey was conducted and where they got their numbers for comparison.

[robertpaulsen]

"these numbers are not really comparable"

Yeah, kinda like the pre- and poet-1999 numbers in the NHSDA data, huh?

I realize the University of Alaska study and these numbers are not comparable, but it's something. Thanks for the link.

[robertpaulsen]

"Congress can prohibit any substance, item and activity because all those can be related to interstate commerce in some way."

ONLY IF Congress is regulating that interstate commerce to begin with.

What's with you? You'd restrict Congress to regulating interstate commerce only, since that's your interpretation of "among the several states". Then you'd allow the states to engage in commerce and activities that would frustrate or negate congressional efforts at their interstate regulation? Is that right?

What, do you think this is some kind of game? Some joke you can play with a supposed "loophole" in the U.S. Constitutiuon?

You'd turn the entire Constitution on its head just to get your precious marijuana legalized. If this were about regulating salt instead of marijuana I wouldn't be hearing a commerce clause peep out of you and most of the pro-marijuana legalizers.

Yes, Congress has the power to regulate just about everything. Maybe everything. Time after time, the courts have said that this commerce clause power is awesome. But they've also added that it is not up to them to restrict it. It is up to the people who elected their congressmen in the first place.

There's your solution. Quit screwing with the Constitution.

[robertpaulsen]

"rather than as a power to be used for the positive purposes of the General Government"

Wouldn't the above phrase also be applicable to commerce with foreign nations?

[inquest]

"rather than as a power to be used for the positive purposes of the General Government"

Wouldn't the above phrase also be applicable to commerce with foreign nations?

Not according to Madison. Pay attention, now:

"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, WOULD belong to it. YET it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, RATHER than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

The word "yet" denotes a contrast between the two. There's your answer. Quit screwing with what he wrote.

[tacticalogic]

Wouldn't the above phrase also be applicable to commerce with foreign nations?

It could, but the fact that it is used in a context specifically limited to interstate commerce, and how the commerce power was intended to be applied to interstate versus foreign commerce is evidence that it is not.

[inquest]

Yes, Congress has the power to regulate just about everything. Maybe everything.

This statement is quite interesting in light of the question you asked back at #25: "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?"

So tell me, do you believe the ratifiers of the Constitution would have agreed to give the federal government the power to regulate "just about everything", "Maybe everything", after Madison and others repeatedly assured them that its powers would be "few and defined"?