Pot & Principles

MEDICAL MARIJUANA: A STATE CHOICE

December 2, 2004 -- NEWS that Justices Antonin Scalia and Clarence
Thomas were heard wax ing sympathetic to federal regulations bullying
state law normally would prompt the question: What were they smoking?
But the scene was this week's oral arguments in Raich v. Ashcroft, the
latest medical-marijuana case to come before the Supreme Court.

The case concerns Angel Raich, a terminally ill California resident
who puffs away the pain of a brain tumor and sundry other ailments. A
California law, passed by ballot initiative, lets her do so. But the
Bush administration argues that the state law should be trumped by the
federal government's zero-tolerance policy.

Specifically, Solicitor General Paul Clement cited the section of the
Constitution that authorizes the federal government to regulate
interstate commerce. That's a huge flip-flop: Conservatives have spent
the last decade trying to curtail the rampant abuse of the Commerce
Clause to justify federal intrusion.

The marijuana that Raich smokes never crosses state lines, and it is
not sold -- making both the "interstate" and the "commerce" part seem a
little fishy. But the anti-drug warriors cite a 1942 case called
Wickard, wherein the Supremes ruled against a farmer who had exceeded
the wheat quota imposed by one of FDR's New Deal agencies --
disregarding his defense that the Commerce Clause didn't apply to what
he was growing for his own consumption.

For obvious reasons, the high court's Wickard finding has never been
popular with the right. So, as a matter of principle, Scalia, Thomas &
Co. should rule against the feds in the Raich case (thereby siding,
for once, with the San Francisco-based, ultraliberal Ninth Circuit
Court of Appeals).

Yes, that means overlooking the self-inflicted image woes of the
medical-marijuana cause, whose supporters haven't done it any favors
by aligning themselves with groups whose real goal is drug
legalization. The sight of hemp-clad, peaced-out throwbacks wandering
around outside the Supreme Court building only underlines the point.

Clouding matters even more is George Soros' support for legalization,
a fad he has embraced with the same fervor as his recent,
deep-pocketed campaign to defeat President Bush.

It's no wonder many see medical-marijuana laws as a slippery slope.
But the issue here isn't idolization of the druggie culture but the
limits of federal authority.

The proper venue for this fight is in state legislatures and
elections. Over the last decade, 12 states have passed ballot measures
carving out exceptions to the federal drug laws. If these exceptions
were really unreconcilable with federal law, the Supremes might be
required to weigh in. But they're not: Prosecutorial discretion leaves
the feds plenty of wiggle room.

Even the Justice Department has acknowledged as much: Its prosecution
manual explicitly advises laying off cases if no substantial federal
interest would be served.

States where citizens have voted expressly to tolerate narrow use of
marijuana are a good place for such discretion. Prosecuting
terminally-ill users of prescribed medical marijuana won't deter
illegal drug users. On the contrary: Drawing too hard a line may wind
up strengthening the case for legalization.

Many conservatives will always associate marijuana with the libertine
generation that mocked traditional values and smelled bad doing it.
But the principle here is one conservatives appreciate when the battle
centers on government limits on pharmaceutical research and on the
rights of terminally ill patients to have access to drugs that might
save their lives.

Solicitor General Clement felt a need to tell the court that "smoked
marijuana really doesn't have any future in medicine," given the
carcinogens, throat irritation, etc. Yet those are just the kinds of
risks that conservatives normally think should be left to doctors and
patients to weigh.

What constitutes good medicine sometimes takes years to become clear,
but we already know the states can manage good government just fine on
their own. The Supreme Court should take the opportunity to just sit
back and chill out.