THE LEGAL JAM

It is a big confusing sprawl of a system, but there are those who love
it, and it takes lifelong love for our system, after weighing the
Supreme Court's decision. The anomalies knock you down, but there is
still light . . .

We have, in California, the principal exfoliate of United States v.
Oakland Cannabis Buyers' Cooperative, No 00-151. It is this. If you
grow marijuana in California, you can't be arrested by state troopers,
but you can be arrested by federal agents.

Proposition 215, which carried California by plebiscitary vote in
1996, authorized marijuana under medical prescription. The Ninth
Circuit Court then handed down a decision denying the right to
prosecutors to pull in marijuana distributors whose clients were
patients of doctors who authorized marijuana. Last June, Peter
McWilliams, the young author, poet, libertine/libertarian, died in
medical duress. He had AIDS, and found relief in marijuana; the feds
brought him in, stuck him in jail, released him on
bail-with-urine-tests to verify that he was not taking marijuana, the
only palliative that gave him relief from pain; and he died. One
doesn't die from not taking marijuana, any more than one dies from
taking it. But what creeps into the case, of course, is the concept of
medical necessity.

Justice Clarence Thomas wrote the majority opinion, which wasn't
endorsed by three of the justices, who wrote their own concurring
opinion. The reason for their disagreement was Justice Thomas's
insistence that marijuana has no unique medical purpose. This
statement is dumbfoundingly outrageous to anyone who knows from
personal experience that the drug gives unique relief to some sufferers.

What Mr. Thomas, and others, correctly did was to acknowledge the
authority of Congress as exercised in its Controlled Substances Act of
1970. This Act decreed that marijuana was a Schedule 1 substance, and
therefore forbidden for use. The Court's indulgent handling of
Congress is a welcome deviation. Yes, Congress said it; yes, Congress
has the authority to rule on drugs; no, California distributors may
not legally sell the drugs. So where do we go now?

That question is politically and constitutionally interesting to
residents of Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon,
and Washington, which have passed laws permissive in orientation on
the question of marijuana. And it is of intense medical interest to
people suffering from debilitating symptoms of AIDS, epilepsy,
glaucoma, multiple sclerosis, and chemotherapy.

California's attorney general, who backed the Oakland cooperative,
regrets that the federal government is standing in the way of
"California's historic role as a 'laboratory' for good public policy."
That statement was a little unguarded, coming from a spokesman from a
state that has served as a laboratory for every kookiness of the past
one hundred years; but the question of states' rights is implicitly
very much there. Justice Stevens raised the point explicitly,
wondering whether the majority opinion showed enough "respect for the
sovereign states that comprise our federal union." Thomas replied
witheringly to his colleague: "Because federal courts interpret,
rather than author, the federal criminal code, we are not at liberty
to rewrite it."

Correct. But inasmuch as we are talking only about one federal law,
easily modifiable, the question of political leadership arises. And
here we have a precedent. While governor of Texas, George W. Bush
opposed legalizing marijuana for medical use, but deferred to
individual states to make their own decision in the matter. "I believe
each state can choose," he said in 1999.

So then that avenue is open: a congressional modification of existing
laws.

But another window is there, the medical-necessity question. It is
already acknowledged that federal prosecutions of marijuana users who
are manifestly beneficiaries of the drug aren't going to appeal to
many California jurors. With the result? That there simply won't be
any prosecution of individual users. How will they get the proscribed
drugs, now that the cooperatives are closed down? That is a silly
question. How does anybody who wants pot get it? How did they get
booze during Prohibition?

Those who enjoy legal theorizing can come up with the argument that to
deny someone a pain-reducing or life-enhancing drug is to deny him due
process and the right to life. These are airy flights of
constitutional theorists on highs, but they do accost the basic
question whether Peter McWilliams is a better judge of medical
palliatives for his ailment than Congress or the Supreme Court.

So it all crowds around our federal system: state laws, state
plebiscites, congressional laws, Supreme Court interpretations,
constitutional epiphanies. It is very red, white, and blue and, we
repeat, there are those who love it.