Court should permit medical marijuana

November 30, 2004

EDITORIAL, Denver Post

We've never been fans of medical marijuana laws. Maybe it's because the practice of sucking in smoke of no particular dosage is the sort of primitive, unhealthy 'treatment' that modern medicine has properly left behind. But if a majority of people want such laws - and in 11 states, including Colorado, they do - by what right does the federal government stop them?

The obvious answer is that government can regulate drugs under the Commerce Clause of the U.S. Constitution.

But what if the marijuana used by certified patients is grown entirely within the state in which they live? And what if the program is carefully limited so that its impact on the illegal market for marijuana is imperceptible? Congress has no authority granted by the Constitution to regulate an activity that is totally intra- state, non-economic in nature and specifically permitted by state law.

Such at least is the argument made Monday before the U.S. Supreme Court on behalf of chronic-pain sufferers in California, and we find it unexpectedly persuasive. We may not like medical marijuana laws as public policy, but we recognize a principled case for reasonable federalism when we hear one.

In other words, much more is at stake in the court's eventual decision in Ashcroft vs. Raich than the survival of the preferred treatment of some patients in chronic pain. The very legal boundaries between the federal government and the states could also be adjusted.

As University of San Diego law professor Lawrence Solum explains on his Web site lsolum.blogspot.com, 'In a sense, this case has its roots in the New Deal era' when the court began expanding the reach of Congress.

'In the 1950s through the 1980s,' Solum writes, 'the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress's power under the Commerce Clause of the Constitution. So long as there was a 'rational basis' or even a 'conceivable rational basis' for Congress's action, it would be within Congress's legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress's power to regulate interstate commerce.'

In those cases, the court overturned congressional attempts to outlaw guns within 1,000 feet of local schools and to federalize crimes of sexual assault. Congressional regulation under the Commerce Clause had to involve 'economic activity,' the court said.

Most news reports said only two or three justices seemed sympathetic to the case for a medical marijuana law. The others raised a number of concerns, including the integrity of federal bans on certain drugs, the difficulty in distinguishing between medical and non-medical uses and the implications for federal regulation in other areas, such as the environment. These are all serious issues, but the lawyer for the chronic-pain sufferers, Randy Barnett, seemed to offer a satisfactory answer for each. (Should you wonder: No, federal regulation would not be swept willy-nilly off the books).

When the court issues its decision next year, we hope it recognizes that the issue of federalism it revived in the 1990s will have little meaning if it doesn't apply to a program sanctioned by state voters and likely to have no discernible effect on the federal government's legitimate interest in regulating (or suppressing) drugs in actual commercial markets. You don't have to be a states-rights enthusiast to appreciate medical marijuana laws as a fairly modest expression of decentralized liberty.



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