WILL CONGRESS HAVE THE GUTS TO TACKLE MEDICAL MARIJUANA

WASHINGTON -- "When I use a word," Humpty Dumpty said in rather a
scornful tone in Lewis Carroll's "Through the Looking Glass," "it
means just what I choose it to mean--neither more nor less.'" The same
might be said by U.S. Supreme Court justices.

Take, for example, Gonzales vs. Raich, the high court's medicinal
marijuana case.

The commerce clause in Article 1 of the Constitution could hardly be
more clear in limiting federal power to commerce "among the several
states," not within a state.

But in Gonzales vs. Raich, a 6-3 majority has stretched "commerce" to
mean just what they choose it to mean--far enough to let the distant
feds, not the close-to-the-people state governments, decide whether
ailing residents should be allowed to grow their own medicine under a
doctor's care.

In the Senate's heated debate over judicial appointments we have
constantly heard conservatives argue that judges should lean toward a
modest role for the national government. Over the past decade, a
conservative Supreme Court coalition under Chief Justice William
Rehnquist has rolled back congressional power and elevated "states'
rights" in a series of decisions. Nevertheless, the Supreme Court
reasserted federal authority in Gonzales vs. Raich on Monday, even in
the 11 states that now permit marijuana when recommended by a doctor.

The people in those 11 states have spoken, and the Supreme Court has
told them to shut up.

Justice John Paul Stevens' majority opinion stretched the meaning of
"commerce" to include anything done in one state that could have "a
substantial effect on interstate commerce." And how does the court
define "substantial"? Broadly enough to cover just about anything.

"... [P]roduction of the commodity meant for home consumption, be it
wheat or marijuana, has a substantial effect on supply and demand in
the national market for that commodity," Stevens wrote.

Justice Antonin Scalia, the archest of the high court's
arch-conservatives, chimed in, if only to say that Stevens' federal
"intrusionism" did not go far enough. "Drugs like marijuana are
fungible commodities"; even when "grown at home and possessed for
personal use," it is "never more than an instant from the interstate
market."

Both opinions sound more like economic theory than day-to-day reality.
After all, the medical marijuana market is only a tiny fraction of a
state's overall drug traffic.

That very rational point, among others, was made by Justice Clarence
Thomas, who cut himself loose from his usual tether to Scalia's world
view to raise a clear, compelling and badly needed voice of reason: If
the two California women who are the defendants in this case are
involved in "interstate commerce," he asked, what in these United
States is not "interstate commerce"?

"Respondents Diane Monson and Angel Raich use marijuana that has never
been bought or sold, that has never crossed state lines, and that has
had no demonstrable effect on the national market for marijuana,"
Thomas wrote. "If Congress can regulate this under the commerce
clause, then it can regulate virtually anything--and the federal
government is no longer one of limited and enumerated powers."

In other words, keep your federal hands out of matters that pertain
only to a particular state and do not infringe on fundamental human
rights.

That human-rights point is particularly significant to those
African-Americans who are old enough to remember when "states' rights"
was offered as a lame excuse to perpetuate racial segregation laws in
the South. The 1954 Brown vs. Board of Education Supreme Court
decision properly overruled states' rights that violate fundamental
human rights. By contrast, Gonzales vs. Raich ironically overrules
states' rights in order to violate a humane right, the right of the
sick to treat their own illness. "Our federalist system, properly
understood, allows California and a growing number of other states to
decide for themselves how to safeguard the health and welfare of their
citizens," Thomas writes. Right on.

The good news in Gonzales vs. Raich is that the high court did not
overturn any of the existing state medicinal marijuana laws. Stevens'
decision also ruled in defiance of Congress and John P. Walters,
director of the White House Office of National Drug Control Policy,
that marijuana does indeed have "therapeutic value." Stevens suggested
that the executive branch might reclassify marijuana for medical
purposes or that Congress might allow "the laboratory of the states"
to decide this matter for themselves.

In fact, Congress is considering two bills, backed mostly by Democrats
and libertarian-leaning Republicans, that could legalize the medicinal
use of marijuana at the federal level.

Congress usually kicks such hot-burning issues as marijuana reform
over to the courts. This time, the courts have kicked it right back.
Congress, as W.C. Fields once said, needs to take the bull by the tail
and face the situation. And the public needs to make itself heard.