FEDERAL MALPRACTICE

Medical marijuana is back in the news due to the U.S. Supreme Court's
willingness to hear the appeal case Ashcroft v. Raich cited in Dean
Kuipers's "Feds vs. Meds" [Dec. 9]. The case boils down to whether the
federal government has the power to prohibit a person from smoking
marijuana for medicinal purposes when said person resides in a state
that has laws regulating its medicinal use. The legal questions
largely revolve around matters concerning the supremacy of federal law
over individual state laws, the U.S. Constitution's commerce clause in
Section 8, Paragraph 3, and possible "rescheduling" by the FDA.

Notably, our Constitution made no specific provisions for the personal
private use of opium poppies, alcoholic beverages, tobacco, cannabis
or any other product.

First, government stripped citizens of the right to cultivate opium
poppies for personal private use. Then, in 1919, a Constitutional
Amendment prohibited "the manufacture, sale, or transportation of
intoxicating liquors" within the country.

In 1937, the horrors of the failed 14-year alcohol prohibition were
fresh in the minds of the citizenry, and the will of the people then
was - and today remains - very much against cannabis prohibition.
Notably, President Bush is proud to cite the "will of the people" on
the matter of traditional marriage and unwilling to cite the will of
the people on the matter of cannabis prohibition.

In fact, the various parties who sought to benefit from a federal
cannabis prohibition knew that they had to find a way around the will
of the people of the various states, so the enactment of the 1937
Marijuana Tax Act was thinly justified upon Congress's constitutional
power to "regulate commerce among the several States." There simply
wasn't anything else whatsoever in the Constitution that could be used
against the will of the people on the matter of cannabis use. For 67
years now, the court has veritably condoned the precipitous and
seemingly unconstitutional Marijuana Tax Act through which Congress
[at the behest of powerful interested parties, including the DuPonts]
effectively stripped citizens of the personal and civil right to use
cannabis, in conjunction with individual state laws. The court
certainly has not stepped forth to assert itself in this area where
constitutionality, judiciousness, and common sense have been
intentionally ignored by the executive and legislative branches.

Moreover, the Supreme Court has often demonstrated less than Solomonic
wisdom on matters related to personal freedom and civil rights.

Evidence for this assertion includes the judicial branch's veritable
collusion with the legislative and executive branches on the matters
of opium poppy cultivation, slavery, and civil rights.

In 1857, 81 years after the nation's founding and four years before
the Civil War, the court ruled in the case of Dred Scott v. Sanford
that a slave taken to a free state was still a slave.

In 1896, 31 years after the end of the Civil War, the court ruled in
the case of Plessy v. Ferguson that "separate but equal" facilities
for black folks were constitutional. The Supreme Court didn't change
its segregationist position on the matter until the 1954 case of Brown
v. Board of Education, a long 89 years after the end of the Civil War.
Perhaps you have heard about the possibility of the court rescinding
the privacy right of women to have an abortion.

The sad and politically incorrect truth is that this court's ruling
will likely have little or nothing to do with: (1) a weighed
consideration of the advantages and disadvantages of cannabis
prohibition; (2) Congress's power to tax interstate cannabis commerce,
(3) federal supremacy; or (4) the personal privacy right to smoke a
natural plant that affords no pecuniary patent protection benefits and
requires no manufacturing. Basically, the arguments made against
cannabis use are that it is evil; leads to the recreational use of
more dangerous substances; leads to laziness and poor judgment and
leads to increased rates of cancer and other health problems.

I don't agree with those arguments, but I do assert the
following:

For prohibitionists and cannabis smokers, murderers and the murdered,
masters and slaves, as well as for those who further pain and those
who endure it, I strongly believe that this life is some sort of
challenging irony-laden test, and that our Heavenly Creator's imminent
justice will surely and severely come to all those who, for reasons of
egoism or ignorance, have opted to force their will upon other private
souls in this relatively short term of years we call life.

Ivan Smason, Ph.D., J.D.

Santa Monica