COURT SHOULD PERMIT MEDICAL MARIJUANA

Some activities are beyond federal reach

We've never been fans of medical marijuana laws. Maybe it's because the
practice of sucking in smoke of no particular dosage is the sort of
primitive, unhealthy "treatment" that modern medicine has properly left
behind. But if a majority of people want such laws - and in 11 states,
including Colorado, they do - by what right does the federal government
stop them?

The obvious answer is that government can regulate drugs under the Commerce
Clause of the U.S. Constitution. But what if the marijuana used by
certified patients is grown entirely within the state in which they live?
And what if the program is carefully limited so that its impact on the
illegal market for marijuana is imperceptible? Congress has no authority
granted by the Constitution to regulate an activity that is totally
intra-state, non-economic in nature and specifically permitted by state law.

Such at least is the argument made Monday before the U.S. Supreme Court on
behalf of chronic-pain sufferers in California, and we find it unexpectedly
persuasive. We may not like medical marijuana laws as public policy, but we
recognize a principled case for reasonable federalism when we hear one.

In other words, much more is at stake in the court's eventual decision in
Ashcroft vs. Raich than the survival of the preferred treatment of some
patients in chronic pain. The very legal boundaries between the federal
government and the states could also be adjusted.

As University of San Diego law professor Lawrence Solum explains on his Web
site lsolum.blogspot.com, "In a sense, this case has its roots in the New
Deal era" when the court began expanding the reach of Congress.

"In the 1950s through the 1980s," Solum writes, "the conventional wisdom
was that the Supreme Court had removed virtually all limits on Congress's
power under the Commerce Clause of the Constitution. So long as there was a
'rational basis' or even a 'conceivable rational basis' for Congress's
action, it would be within Congress's legislative power. It was therefore a
shock when the Supreme Court decided two cases in the 1990s that struck
down federal statutes on the grounds that they were outside of Congress's
power to regulate interstate commerce."

In those cases, the court overturned congressional attempts to outlaw guns
within 1,000 feet of local schools and to federalize crimes of sexual
assault. Congressional regulation under the Commerce Clause had to involve
"economic activity," the court said.

Most news reports said only two or three justices seemed sympathetic to the
case for a medical marijuana law. The others raised a number of concerns,
including the integrity of federal bans on certain drugs, the difficulty in
distinguishing between medical and non-medical uses and the implications
for federal regulation in other areas, such as the environment. These are
all serious issues, but the lawyer for the chronic-pain sufferers, Randy
Barnett, seemed to offer a satisfactory answer for each. (Should you
wonder: No, federal regulation would not be swept willy-nilly off the books).

When the court issues its decision next year, we hope it recognizes that
the issue of federalism it revived in the 1990s will have little meaning if
it doesn't apply to a program sanctioned by state voters and likely to have
no discernible effect on the federal government's legitimate interest in
regulating (or suppressing) drugs in actual commercial markets. You don't
have to be a states-rights enthusiast to appreciate medical marijuana laws
as a fairly modest expression of decentralized liberty.