MUDDLE AT THE SUPREME COURT OVER MEDICAL MARIJUANA

When the U.S. Supreme Court ruled against medical-marijuana users,
many critics of the decision thought the six-justice majority failed
to show compassion for severely ill people. But the Supreme Court
doesn't sit to dispense compassion. It's supposed to ensure that
Congress respects the Constitution and, by extension, individual
liberty. How did it do on that count?

Before we get to that question, a foreword is in order. Under
California's Compassionate Use Act, doctors may prescribe marijuana
to patients with severe medical problems. Those patients are then
permitted to grow marijuana for their own use. The state closely
regulates the prescription, cultivation, and use of the product to
prevent others from obtaining it. (At least nine other states have
similar laws.)

The issue in Gonzalez v. Raich et al. was whether such patients
should be exempt from the federal prohibition against production and
possession of marijuana.

Many well-intentioned people say yes: of course, severely ill people
should be able to grow and use marijuana by prescription without fear
that federal agents will barge into their homes (as they did to Diane
Monson, a party in the case), destroy their plants, and charge them
with unlawful possession.

But the case raises questions that cry out for answers. What about
equality under the law? Why should only sick people be exempted from
the prohibition? If sick people have a right to obtain marijuana, it
must be because they have a right to their own lives and therefore a
right to take all peaceful actions to maintain their lives. But don't
the rest of us have the same rights?

These questions show that medical-marijuana laws are inappropriate in
a free society, which should respect the right of all adults to use
whatever substances they wish. Laws such as the Compassionate Use
Act are examples of misplaced compassion. Sick people need freedom,
not permission, however compassionate the motive. So do we all.

Now what about the Court's ruling?

If you wish to see how far America has drifted from its libertarian
roots, just study the Supreme Court's Commerce Clause cases. The
U.S. Constitution delegates to Congress the power to "regulate
commerce ... among the several states." This provision was intended
to prohibit state governments from enacting protectionist trade
restrictions against commercial interests in other states. The
clause thus declared the United States a free-trade zone.

Unfortunately, it didn't take long for Congress and the Supreme Court
to warp the Commerce Clause into something unrecognizable. It went
from a way to maintain the flow of products to a way to restrict and
even prohibit the flow of products. Then, during the New Deal it
became a means of prohibiting even noncommercial intrastate activity
if seen as necessary to regulate interstate commerce. That brought
us to our present lamentable circumstances.

The unfortunate upshot is that while the Raich ruling faithfully
follows (bad) Court precedent, it woefully violates the original
purpose of the Commerce Clause. More fundamentally, the war on drug
producers and consumers itself violates the Constitution. Alas, even
the dissenting opinions, such as Justice Clarence Thomas's, is
flawed. Thomas writes, "The Commerce Clause empowers Congress to
regulate the buying and selling of goods and services trafficked
across state lines." Wrong, but the majority, including Justice
Antonin Scalia, agreed, adding that, because Congress has a rational
basis for fearing that homegrown marijuana could end up in the banned
interstate market and because Congress may enact all laws "necessary
and proper" for carrying out its objectives, no exemption for sick
people from the Controlled Substances Act is justified.

What a muddle. Yes, there should be no exemption. But that's because
there should be no war on drugs.