DUST-UP

RAIDING STATES' RIGHTS?

Do federal raids of legal local marijuana dispensaries violate state
sovereignty? Charles 'Cully' Stimson and Jacob Sullum debate.

Today, Stimson and Sullum debate the federal government's assertion of
authority in states where certain kinds of drug use are legal.
Previously, they compared drug legalization and decriminalization.
Later in the week, they'll discuss drug-related violence, admitted
substance use by successful politicians and more.

The law is on the feds' side

By Charles "Cully" Stimson

The answer to today's question -- not just mine, but the Supreme
Court's -- is no.

In the case of Gonzales vs. Raich, the Supreme Court ruled that
Congress has the constitutional power to ban the use of marijuana,
even when a state approves it for "medicinal purposes." Marijuana is
on the list of prohibited substances under the Controlled Substances
Act of 1970. It is classified as a Schedule I drug that has, according
to the federal government, no "medical uses." That's the law of the
land.

California voters apparently disagreed with that policy, so in 1996
they approved Proposition 215, known as the Compassionate Use Act.
That initiative made it legal for patients to get and use marijuana
for medicinal purposes. Advocates for medicinal use of marijuana argue
that patients should be able to use the drug because it has palliative
properties. Nobody wants patients with horrible diseases to suffer,
and if all it takes is a little cannabis to ease pain, they say,
states should be allowed to regulate the distribution of marijuana.

So far, so good. But when you disagree with a law, it's too easy to
forget that we have a government of laws and not men -- in other
words, not a dictatorship but a self-governing democracy. That means
that the law applies to each of us equally, so you cannot ignore a law
simply because you disagree with it. What you should do instead is
challenge or try to change it.

A California resident did challenge it in Raich vs. Gonzales, but the
state's law lost. The U.S. Constitution states, "The Congress shall
have power to ... regulate commerce ... among the several states."
These simple words have produced more litigation and disputes than any
other clause in the Constitution. Reasonable people can agree or
disagree with the court's "commerce clause" jurisprudence, and many
agree with Justice Clarence Thomas' dissent in Raich, in which he
wrote that local cultivation and consumption of marijuana is not
commerce among the several states. But Thomas was in the minority, and
because we live in a country of laws, we must follow the law as the
court has interpreted it.

That's true for all of us, including myself, who have great sympathy
for those in pain because of sickness or disease. I would do anything
I could to help a sick or dying family member or friend, but there's a
real dilemma when that "anything" is a violation of a valid law. Some
people will do it anyway, and they face the risk of arrest and
prosecution. It's a small cost relative to the enormous benefit of
"government of laws and not men."

The importance of enforcing this federal law under these circumstances
is an open question. But a claim that enforcement violates states'
rights is just rhetoric, short of showing the law is beyond Congress'
enumerated powers -- a claim the Supreme Court specifically rejected.
And yet "state sovereignty" remains a refrain of legalizers. Rather
than try to change the federal law, they would have their states
simply ignore it in certain circumstances. That has nothing to do with
state sovereignty; it's just lawlessness.

Charles "Cully" Stimson was a local, state and federal prosecutor, a
military prosecutor and defense attorney, and a deputy assistant
secretary of Defense. Currently, he is a senior legal fellow at the
Heritage Foundation (heritage.org).

THE POWER TO REGULATE ANYTHING

By Jacob Sullum

When the federal government banned alcohol, the supporters of
Prohibition recognized that a constitutional amendment was necessary
because Congress did not have the authority to impose a ban simply by
passing a law. The early laws dealing with other intoxicants,
including the Harrison Narcotics Act of 1914 and the Marihuana Tax Act
of 1937, were ostensibly revenue measures -- again, because it was
widely understood that the Constitution did not empower Congress to
ban psychoactive substances it did not like. By the time of the
Controlled Substances Act of 1970, Congress had dispensed with this
pretense, decreeing not only production and distribution but even
intrastate possession of certain psychoactive chemicals to be a
violation of federal law. What changed in the meantime was not the
Constitution but the Supreme Court's willingness to read the "commerce
clause" as an all-purpose excuse for Congress to legislate in almost
any area that strikes its fancy.

The transformation of a clause that was originally intended to
maintain free trade among the states into a blank check for federal
meddling has made a hash of the doctrine of enumerated powers, which
holds that Congress has only those powers explicitly granted by the
Constitution. The way federal courts now read the Constitution,
Congress can do whatever it wants, unless the Constitution prohibits
it (and sometimes even then). The Amazing Super-Elastic Commerce
Clause that emerged from Franklin D. Roosevelt's New Deal has nearly
obliterated the distinction between national and local matters at the
heart of our system of government. Conservatives who consider
themselves strict constructionists, federalists or foes of big
government usually decry this development except when it comes to
their pet issues, such as drugs.

Cully, it amazes me that you or anyone who believes in the rule of law
can accept with equanimity the notion that grabbing a bag of marijuana
from the dresser drawer of a cancer patient in Colorado or pulling up
a cannabis plant in the backyard of an AIDS patient in California
amounts to regulating interstate commerce. "No evidence from the
founding suggests that 'commerce' included the mere possession of a
good or some purely personal activity that did not involve trade or
exchange for value," Thomas noted in his Raich dissent. "In the early
days of the Republic, it would have been unthinkable that Congress
could prohibit the local cultivation, possession, and consumption of
marijuana."

By stretching the meaning of interstate commerce beyond recognition,
the Supreme Court not only made life harder for desperately ill people
harassed by federal officials who do not approve of the medicine that
relieves their suffering, it drove a stake into the heart of the
so-called federalism revolution that was supposed to restore some
balance between the states and the national government. "If Congress
can regulate this under the Commerce Clause," Thomas observed, "it can
regulate virtually anything."

To ban marijuana, Congress should have sought to amend the
Constitution through the arduous process prescribed by the framers,
just as it did when it banned alcohol. Instead, it has amended the
Constitution through legislative assertion and judicial
acquiescence.

Jacob Sullum, a senior editor at Reason magazine and a nationally
syndicated columnist, is the author of "Saying Yes: In Defense of Drug Use."