Compassion vs. Conservatism

June 10, 2005

James Lileks, Syndicated Columnist, Newhouse News Service

We now have an answer to the question of whether U.S.  agents should knock down doors and bat the reefer from the fingers of cancer patients.  Yes! By all means, yes.  The Supremes have ruled that federal anti-weed laws must trump individual states' laws on medicinal marijuana.  So much for the idea that the states are the laboratories of democracy. Of course, this doesn't mean they can be the meth labs of democracy. 

But is medical marijuana such a threat? We'll get to that. 

First, consider the rationale the court employed: our old catch-all pal, the interstate commerce clause.  As the ruling notes: 'Wickard ( a case cited as a precedent ) thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.'

I am not a lawyer, which is why the idea of the interstate commerce clause having jurisdiction over intrastate non-commerce is amusing.  Everything is a matter of interstate commerce, it would seem. 

Pity President Bush didn't claim the right to knock over Saddam Hussein based on the interstate commerce clause; every statist and big-government advocate would have gotten writer's cramp praising this novel approach.  It's only a matter of time before fast food is regulated under the clause, since hungry truckers often take sacks of fries across state lines.  It's the perfect law.  We could use it to annex Mars. 

This case isn't about the efficacy of medical marijuana or even the legalization of the stuff, but it's difficult not to consider the ancillary issues.  Some insist that there's no place in the therapeutic process for illegal drugs.  Why? 'Well, uh, because they're illegal.'

Hmm.  Paging Dr.  Tautology; Dr.  Tautology to the dispensary.  Hospitals have been using morphine by the gallon for decades, and you don't find it at the drugstore next to the corn pads and Band-Aids.  It's very illegal, but its use in hospitals hasn't led to widespread use in the general society.  You don't often read about once-thriving neighborhoods reduced to ruin by a plague of morphine addicts. 

There are ways to keep medical marijuana from getting out into the general population.  Keep it in suppository form -- notoriously hard to light -- and keep the dosage mild.  Compared to the high-power knock-you-down reefer favored today, Uncle Sam Brand would suffer in the marketplace. 

Yes, yes, once it's accepted by all, some doctors will prescribe it for anything, from 'inability to endure Phish CDs' to 'chronically mellow deficiency.' It still won't increase the number of potheads. 

Granted, it would diminish the government's moral authority to condemn cannabis use if it's prescribed for things other than cancer and glaucoma.  But if the government wanted more moral authority, it wouldn't sue cigarette makers while making more off taxes than the makers earn per pack. 

The drug war will remain -- the same grinding stalemate, played out for the foreseeable future.  The state has no interest in ending it, as it seems, dare I say, addicted to the power the war grants. 

The public isn't in the mood to legalize crack.  But the public, now and then, realizes that there are some gray areas -- all you need to do is hear a few hundred tales of cancer sufferers finally able to keep down a meal because they used medicinal marijuana, and you might believe that the Republic will not founder if we grant them this surcease. 

That, however, will take a federal law. 

And perhaps that's what it needs.  Perhaps medical marijuana needs Food and Drug Administration approval -- providing that People for the Ethical Treatment of Animals will let them test it on rabbits, that is. 

It may not be conservative by some people's definition to let a sick person grow some pot in the backyard.  But it does not seem particularly compassionate to forbid it. 

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