High court's the wrong joint for medical-marijuana fight

December 02, 2004

Collin Levey (Op/Ed), Seattle Times

Typically, if conservative Supreme Court Justices Antonin Scalia and Clarence Thomas were overheard waxing sympathetic to federal regulations bullying state law, reasonable people would wonder what they'd been smoking. Alas, this week, in Raich v. Ashcroft, the latest medical-marijuana case to come before the high court, that's exactly what they have been up to.

The case concerns Angel Raich, a terminally ill California resident who puffs away the pain of a brain tumor and sundry other ailments using pot grown in the state.

A California law, passed by ballot initiative, allows her to do so. But under a section of the Constitution that authorizes the federal government to regulate interstate commerce, the Bush administration and Solicitor General Paul Clement argue California's law should be trumped by the federal government's zero-tolerance drug policy.

It is not a proud moment for conservatives who've spent the past decade trying to curtail the rampant abuse of the commerce clause to justify federal intrusion. The marijuana Raich smokes never crosses state lines and it is not sold — making both the 'interstate' and the 'commerce' part seem a little fishy.

That hasn't stopped the anti-drug warriors from trying to analogize her situation to a 1942 case, Wickard v. Filburn, wherein the Supremes ruled against a farmer who had exceeded the wheat quota imposed by one of FDR's New Deal agencies, disregarding his defense that the commerce clause didn't apply to what he was growing for his own consumption.

For obvious reasons, the high court's Wickard finding has never been popular with the right. So, as a matter of principle, Scalia, Thomas & Co. should rule against the feds in the Raich case (thereby siding, for once, with the San Francisco-based, ultraliberal 9th U.S. Circuit Court of Appeals).

True, the medical-marijuana cause suffers from a series of public-relations flaws; its supporters haven't done it any favors by aligning themselves with groups whose real goal is drug legalization. The sight of hemp-clad, peaced-out throwbacks wandering around outside the Supreme Court in Washington only underlines the point. Plus, there's the fact that the case hails from California, the permissiveness capital of the world.

Helping cloud matters still further is George Soros' support for legalization, a fad he has embraced with the same fervor as his recent, deep-pocketed campaign to defeat President Bush.

No wonder many conservatives see medical-marijuana laws as a slippery slope — not unreasonable given the High Times readers who turn out in numbers whenever a case like Raich v. Ashcroft materializes. But — focus, conservatives — the issue here isn't idolization of the druggie culture but the limits of federal authority.

The proper venue for this fight is in state legislatures and elections. Since 1996, 11 other states have used ballot initiatives to carve out similar exceptions to the federal drug laws. If these exceptions were really unreconcilable with federal law, the Supremes might be required to weigh in. But they're not. Prosecutorial discretion leaves the feds plenty of wiggle room. Even the Justice Department has acknowledged as much: Its prosecution manual explicitly advises laying off cases if no substantial federal interest would be served.

States where citizens have voted expressly to tolerate narrow use of marijuana are a good place for such federal discretion. Prosecuting terminally-ill users of prescribed medical marijuana won't deter illegal drug users. On the contrary: As with many 'slippery slope' arguments, drawing too hard a line may have the opposite effect of strengthening the cause of those who want drugs legalized for all.

For plenty of conservatives who lived through the '70s, marijuana will always be associated with the libertine generation that mocked traditional values and smelled bad doing it. But those same conservatives are regularly found on the front lines of important arguments about pharmaceutical research and the rights of terminally ill patients to have access to drugs that might save their lives — without overly onerous regulations.

Clement felt a need to lamely add that 'smoked marijuana really doesn't have any future in medicine,' given the carcinogens, throat irritation, etc.

Good grief. Aren't these just the kinds of risks that conservatives normally think should be left to doctors and patients to weigh?

What constitutes good medicine sometimes takes years to become clear, but we already know the states can manage good government just fine on their own. The Supreme Court should take the opportunity to just sit back and chill out.

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