STATES SHOULD END THE DRUG WAR

Speaking Out:

It is worth recalling that the Constitution had to be amended before the
federal government could prohibit alcohol in the 1920s. Why then has it
been able to ban drugs without an amendment?

Medicine by regulation is better than medicine by referendum." US Supreme
Court Justice Stephen Breyer said that during last week's arguments over
the much-watched medical-marijuana case. Breyer, in other words, prefers
that any change in the government's prohibition of marijuana use be
accomplished by an appeal to the federal drug-enforcement authorities
rather than by a public vote in the states, such as occurred in California.

But he is really saying that medical oppression by an elite is better than
medical oppression by the mob. Are those our only choices? Why must we have
medical oppression at all? Why not medicine by free individual choice? That
this is not even on the table shows how far our society has moved from its
individualist foundations.

The case /Ashcroft v. Raich/ has two dimensions, procedural and
substantive, and it is important to consider them separately. People who
approve of "medical marijuana" -- that is, empowering doctors to prescribe
pot to certain sick people -- tend to favor letting the states partially
nullify the federal drug ban. And people who disapprove of medical
marijuana tend to favor having the federal government veto such state
nullification. But a mix and match is coherent and even sensible. That is,
one can oppose the federal government's effort to stop states from enacting
medical-marijuana laws while also opposing those laws. I shall explain.

Since the New Deal, federalism has essentially been abolished by the
Supreme Court's permissive attitude toward Congress and the Constitution's
"commerce clause." That has begun to change.

The Founders of the United States understood the threat to liberty from
concentrated political power, so they tried to divide power not only among
the three branches of the national government, but also between the
national and state governments. Back then, people saw their respective
states as sovereign and never would have assented to a scheme in which the
states became mere administrative subdivisions of the national government.
As a result, the Congress was delegated a few defined powers (to use James
Madison's term) and the states retained other powers by default. (See the
Tenth Amendment.)

Unfortunately, the eminently sensible division of powers, called federalism
but mislabeled "states' rights," acquired a bad name, primarily because of
the violations of blacks' rights after the War between the States. (Before
the war, the slave states were not consistent advocates of states' rights;
they self-righteously objected when northern states passed personal-liberty
laws that in effect nullified the federal fugitive-slave act.)

Since the New Deal, federalism has essentially been abolished by the
Supreme Court's permissive attitude toward Congress and the Constitution's
"commerce clause." Until recently, Congress could get away with passing any
law as long as it claimed authority under that clause. That has begun to
change. In recent years the Court has found two cases in which Congress's
resort to the commerce clause was just too transparent to tolerate.

Now it has to contend with /Raich/ and state medical marijuana. Here's the
rub: most people who say they like federalism want no part of anything that
looks like a loosening of the marijuana laws. And those who embrace medical
marijuana dislike states' rights in most other cases. It's a topsy-turvy
world! The indications at last week's Court session were that federalism
will take a hit.

Here's what ought to happen: The Court should endorse federalism and stop
the Bush administration from interfering with the states on medical
marijuana. It should also recognize that the federal government has no
constitutional authority to regulate drugs. It is worth recalling that the
Constitution had to be amended before the federal government could prohibit
alcohol in the 1920s. Why then has it been able to ban drugs without an
amendment?

Once the feds are disarmed in the war on drug makers and consumers, the
states should repeal their own laws against production, sale, and
possession. All prescription laws should also be repealed. Then we will
have real individual freedom and self-responsibility. Self-medication is as
inalienable a right as self-education. Medical marijuana does not advance
liberty. It only empowers doctors. The idea that government should decide
whether marijuana is medicine or not and whether doctors should be
permitted to give it to sick people ought to be offensive to any
self-responsible American.