Tenth Amendment Intact After Pot Ruling

June 07, 2005

Al Knight (Columnist), Denver Post

The Hemp Evolution website (hempevolution.org) is in red- alert mode in the wake of the U.S. Supreme Court's decision Monday upholding the right of the federal government to prosecute users of medicinal marijuana.

'The Supreme Court rules against the sick,' is one of the milder headlines on just one of the Internet websites dedicated to promoting the wondrous benefits to be obtained by smoking marijuana.

A close reading of some of the latest mainstream media dispatches indicates that users of medicinal marijuana, now permitted in 10 states including Colorado, don't really have much to fear from the court's decision. Authorities in all of these states have rushed to the camera to announce that they have no intention of sending out search parties to find small stashes of marijuana.

Indeed, the five-justice majority opinion written by Justice John Paul Stevens virtually sides with those who think state authorities should now ignore the court's ruling. Stevens writes:

'This case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer.'

That passage suggests that if state and federal authorities wish to look the other way at future violations, it will be OK with the court.

It is also interesting that Clarence Thomas, who dissented from the decision, has suddenly become the darling of the pro-marijuana crowd. Thomas said that if the federal government can regulate home-grown medicinal marijuana, it can regulate 'quilting bees, clothes sales, and potluck suppers.'

Those planning a potluck supper need not panic. Nor is it likely that Congress will do what the pro-marijuana lobby would like it to do, which is carve out a medical exception to the drug laws.

The reason for this congressional reluctance is not hard to determine. The fact is, as Justice Antonin Scalia pointed out in a concurring opinion Monday, it's hard to tell the difference between marijuana intended for intrastate use from that intended for interstate use.

'Not only is it impossible to distinguish 'controlled substances manufactured and distributed intrastate' from 'controlled substances manufactured and distributed interstate' but it hardly makes sense to speak in such terms,' he said. 'As the court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular state.'

Critics of the majority decision have decried the fact that the court has again turned its back on the Tenth Amendment to the Constitution, which reserves powers not delegated to the federal government to the states and its people. But in jumping to the conclusion that the Tenth Amendment is officially dead, they must ignore the impact of a number of prior Supreme Court cases that ultimately controlled the outcome in this case.

The most important one of these involved a wheat farmer's attempt to duck federal crop regulations by arguing that his wheat was being grown only for family or onsite consumption. The Supreme Court in that case ruled against the farmer and said the wheat wasn't exempt from federal regulation.

Thus, the proper response to Monday's decision is to again ask Congress if it wishes to make a medical exception to its drug laws. If it doesn't - and keep in mind that responsible medical organizations oppose the exception - then the next step in this chapter of history will almost certainly be an abuse of medicinal marijuana serious enough to warrant prosecution.

In the meantime, the Tenth Amendment is probably no worse off than it was before.

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