WATCHED POT

If hard cases make bad law, as a three-hundred-year-old courthouse saying
has it, then the case of Gonzales et al. v. Raich et al. ought to have been
easy and good. The case is--or appears to be--about marijuana and illness.

On one side is Attorney General Alberto Gonzales, whose et al. consists of
the massed power of the United States government. A.G.A.G. et al. take the
position that because Cannabis sativa is irredeemably wicked and has no
legitimate uses, medical or otherwise, the possession of it, to say nothing
of its cultivation, distribution, or sale, is quite properly forbidden by
federal law. On the other side is Angel Raich, a thirty-nine-year-old
mother of two from Oakland, California. Raich does not have cancer, aids,
multiple sclerosis, or epilepsy--the big-ticket ailments whose symptoms can
often be palliated by marijuana.

But she does have more than her share of physical troubles, including an
inoperable (though nonmalignant) brain tumor.

Pharmaceutical remedies having proved unavailing, her physician suggested
marijuana, which has worked well enough to afford her something like a
normal life.

Raich's et al. consists of a couple of anonymous gardeners who tended the
plants whose buds she baked into cookies, and a second California woman,
Diane Monson, who grows her own, with which, on her doctor's advice, she
relieves her otherwise intractable back spasms.

Monson did grow her own, at any rate, until agents of the Drug Enforcement
Agency came to her house and chopped down her plants, all six of them, with
machetes while she, Barbara Fritchie-like, read aloud the text of
Proposition 215, the popular initiative by which California, nine years
ago, approved the medical use of marijuana.

You might say, therefore, that Raich's et al. also includes, in spirit, the
millions of Californians who voted for Prop 215, plus the voters and
legislators of the ten other states where medical-marijuana laws have been
enacted, plus the Institute of Medicine, the American Academy of HIV
Medicine, the American Academy of Family Physicians, the American Nurses
Association, the American Public Health Association, the California Medical
Association, the Lymphoma Foundation of America, the New York State
Association of County Health Officials, and the Medical Society of the
State of New York, plus peer-reviewed publications such as The Lancet and
the New England Journal of Medicine--all of which have attested to
marijuana's medical usefulness.

Earlier this month, by a vote of six to three, the Supreme Court went with
the A.G. and his et al., leaving Raich and hers in the lurch.

But the ruling had nothing to do with marijuana's wickedness (which none of
the four written opinions, two on each side, took seriously) and little to
do with its efficacy in relieving suffering (which all four took for
granted). To make sense of Gonzales v. Raich, a Supreme Court Decoder Ring,
available with three box tops from Original Intent Cereal, would be a
valuable accessory.

The ruling, you see, was all about the Constitution's commerce clause, the
one that authorizes Congress to "regulate Commerce with foreign Nations,
and among the several States." The majority asserts demurely that its
ruling is "a modest one." The Justices do not say that the federal ban on
marijuana is a good idea, or that it makes sense to punish the sick for
using it, or that a sick person growing her own pot in her own back yard is
engaged in Commerce among the several States. It does not even say that the
aggregate production of back-yard medicinal-marijuana gardens would
"substantially affect interstate commerce." All it says is that "a
'rational basis' exists for so concluding"--whether or not a more
compelling "rational basis" exists for concluding the opposite.

But this is enough to sic the feds and their machetes on Ms. Monson's pot
patch.

Gonzales v. Raich jumbled the Court's usual ideological battle lines. The
four moderate-to-almost-liberal Justices--David Souter, Ruth Bader
Ginsburg, Stephen Breyer, and John Paul Stevens, who wrote the majority
opinion--ended up, confusingly, on the "anti-marijuana" side. The two
softish states'-rights conservatives were divided: Sandra Day O'Connor
wrote the main "pro-marijuana" dissent, while Anthony Kennedy went the
other way. The hard right split 2-1: the Chief, William Rehnquist, and
Clarence Thomas (pro); Antonin Scalia (anti). All very puzzling to
civilians, but Decoder Ring-wearing Court observers speculate that the true
agenda of the majority (especially its moderate members) was to slow the
Court's "federalist" (that is, antifederalist) drift toward chipping away
at the regulatory powers of the national government, while the minority's
purpose was to accelerate that drift.

Kennedy's well-known hostility to pot seems to have trumped his dislike of
federal regulation. Scalia's concurring opinion (which, with characteristic
modesty, he described as "more nuanced" than Stevens's) was devoted largely
to explaining why his concurrence should not be taken to suggest that he
likes big gummint.

The least muddled opinion was Justice Thomas's separate dissent, certain
passages of which (e.g., "In the early days of the Republic, it would have
been unthinkable that Congress could prohibit the local cultivation,
possession, and consumption of marijuana") could have been written by
Justice Cheech or Justice Chong. Thomas's private views on marijuana are
unknown, but if he had his way, as expressed in this particular opinion,
any federal interference with homegrown, home-smoked pot, whether for
medical or recreational purposes, would be ruled out as an unconstitutional
usurpation of the states' powers "to protect the health, safety, and
welfare of their citizens." But, then, almost any federal effort to protect
those things would be similarly inadmissable. Hello to bong hits, but
goodbye to workplace safety, environmental regulations, and Medicare.
Thomas's view has the virtue of consistency. But consistency is not the
same as wisdom.

Stevens, in the final paragraph of his opinion, came close to begging
Congress to do something about the heartlessness of using federal cops to
harass sick people whose suffering marijuana eases.

He noted that there are bureaucratic procedures that would allow marijuana
to be reclassified as a drug with legitimate medical uses. "But perhaps
even more important than these legal avenues," he added, "is the democratic
process, in which the voices of voters allied with these respondents may
one day be heard in the halls of Congress."

Last Wednesday, as if on cue, the House of Representatives took up for the
third straight year the bipartisan Hinchey-Rohrabacher amendment, which
would deny the Department of Justice funds to surveil, arrest, or prosecute
patients in states that have medical-marijuana laws. For the third straight
year, it failed, though the margin of defeat this time was smaller than it
was last year, and last year it was smaller than it had been the year before.

Someday the cruelty of the "drug war" will give way to laws and policies
based on reason and justice.

But that day is painfully slow in coming, and no drug, legal or not, can
take the pain away.