Medical marijuana case is more federal overkill

June 08, 2005

Daniel Weintraub (Columnist), Sacramento Bee

Like the old parable about the frog not noticing as it slowly boils in a pot of water, Americans are losing more and more of their rights everyday to an overweening federal government, yet we hardly seem to care. This week's ruling by the U.S. Supreme Court on California's medical marijuana law is the latest example.

The court has been backing the right of Congress to intervene in our lives for so long now that it's hardly news anymore. States rights, while abused to defend the institution of slavery, once were thought to be the individual's best defense against the feds.

But that doctrine has long since been rendered ineffective, and it was worthless in the marijuana case. 

So as the federal government grows in size and reach, the question arises: Is there any aspect of our lives left that Congress cannot regulate? Monday's ruling suggests that the answer is probably not.

The case involved two California women - Angel McClary Raich of Oakland and Diane Monson of Butte County - who suffer from serious illness and use marijuana to relieve their pain, and who sought an injunction to stop the federal government from enforcing drug laws against those who grow, possess or use medical marijuana. They use their pot under the auspices of California's Compassionate Use Act, enacted by voters in 1996.

Raich gets her marijuana from caregivers who grow it for her. Monson grows her own. In 2002, agents from the Drug Enforcement Agency raided Monson's home and destroyed her six plants.

In its decision, the court did not strike down California's statute, but upheld the right of U.S. agents to enforce the federal Controlled Substances Act even on Californians who follow state law.

The court ruling rested largely on the Interstate Commerce Clause of the Constitution. Although the women were engaged in no commerce and neither they nor their marijuana was crossing state lines, the court found that Congress has an interest in regulating intrastate activity which might indirectly subvert the federal government's legitimate right to control interstate commerce. Since it is impossible to tell whether marijuana in the possession of an individual was grown at home or purchased on the market, the court reasoned, personal use, even for medicinal purposes, falls within the federal government's purview.

The 6-3 decision did not come as a surprise to lawyers and scholars who follow the court, since it tracked closely with decades of precedent. And even though the court in recent years has dabbled with the idea of reinvigorating federalism, it hasn't been willing to follow through on that impulse with any gusto. At least four members of the current court are considered to be openly hostile to states rights and comfortable with an expansive federal government. The five others support federalism in different ways at different times and thus are difficult to corral into a working majority.

The decision in the marijuana case was written by Justice John Paul Stevens and supported by Justices Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsberg and Stephen Breyer.

The main dissent was written by Justice Sandra Day O'Connor and joined by Justice Clarence Thomas and Chief Justice William Rehnquist.

Thomas, in his separate dissent, succinctly summarized the ruling's import for those who believe Congress and the federal government are overstepping their constitutional bounds.

'Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines and that has had no demonstrable effect on the national market for marijuana,' Thomas wrote. 'If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the federal government is no longer one of limited and enumerated powers.'

A statement from John Walters, President Bush's director of national drug policy, demonstrated Thomas' point perfectly. Walters' paternalistic attitude toward American citizens fairly dripped off the page.

'Smoking illegal drugs may make some people 'feel better',' Walters said. 'However, civilized societies and modern-day medical practices differentiate between inebriation and the safe, supervised delivery of proven medicine by legitimate doctors.'

Unfortunately, too many Americans who would be shocked and offended if their next-door neighbor said he knew what was best for them acquiesce when the government, which is really just millions of neighbors acting in concert, does exactly the same thing.

But if states rights are dead, perhaps a better and even more fundamental concept - the sanctity of the individual - can someday rise in their place. Indeed, the lawyers in the marijuana case say they plan to return to the 9th U.S. Circuit Court of Appeals and this time focus on the basic right of individuals to live their lives without government interference.

It's hard to believe that the founders really meant to give the federal government the power to raid the home of a sick woman growing an herb for herself to relieve the pain from a chronic illness. To say that such enforcement is within the realm of regulating interstate commerce may be consistent with the court's precedents in this part of the law, but it is not consistent with either common sense or human dignity.

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