STATES RIGHTS VS. FEDERAL TYRANNY

For many of us, the phrase "states' rights" has been viewed as code for the right of a state's majority to tyrannize its minorities. That view may have to change. For in December a federal court embraced the concept of states' rights to assert the right of a state majority to defend its minorities from federal tyranny.

Here's the background. In 1996, by direct vote, Californians allowed themselves to use doctor-prescribed marijuana as a medicine. Both the Clinton and Bush administrations refused to honor the referendum. They held that the federal Controlled Substances Act superseded state law.

In 2002 Attorney General John Ashcroft and DEA chief Asa Hutchinson upped the ante by sending federal troops into California to destroy marijuana plants. This included uprooting homegrown plants used by residents to alleviate a variety of devastating symptoms.

Those whose homes were invaded sued. They asked the District Court to enjoin the feds from further raids until their suit could wend its way through the courts. In March 2003 the District Court refused. The judge concluded the plaintiffs hadn't shown sufficient likelihood that they would prevail at trial.

On Dec. 16, 2003 the 9th Circuit Court of Appeals reversed that ruling. The three-judge panel found that the plaintiffs are indeed likely to succeed in proving that the federal law, as it applies to them, is unconstitutional. It directed the lower court to issue the injunction.

When that happens almost 20 percent of the nation's population, some 55 million people in nine states, will be able to grow marijuana for medical purposes without fear of federal interference, if state law allows it.

The 9th Circuit Court is the nation's most liberal federal court. The Supreme Court has overturned many of the 9th Circuit's past decisions. Its medical marijuana decision may receive a more sympathetic hearing since it is consistent with recent Supreme Court rulings limiting the federal government's ability to criminalize personal behavior. In an earlier decision, the 9th Circuit Court had declared that those decisions "represent a decisive shift in the Court's analysis of the limitations on Congress' power to enact legislation pursuant to the Commerce Clause."

In layman's language, this means the Court no longer will affirm the federal government's right to criminalize personal behavior simply because the behavior has a trivial impact on interstate commerce. Moreover, the Supreme Court has decided that the federal reach cannot extend to in-state behavior that is not commercial in nature.

In 1995 the Court struck down the federal Gun Free School Zones Act. That Act made it a federal crime to possess a firearm in a school zone. The Court concluded that the act of possessing a handgun does not substantially affect commerce.

In 2000 the Supreme Court ruled that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in commerce." Therefore federal arson statutes did not cover the burning of such property.

In 2001 the Supreme Court ruled that "isolated ponds, some only seasonal, wholly located within two Illinois counties" were not "navigable waters" covered by the Clean Water Act.

In the handgun decision the Court commented, "Under the theories that the Government presents...we are hard pressed to posit any activity by an individual that Congress is without power to regulate." It reiterated a 65-year-old observation by the Court that the commerce clause "may not be extended as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

In its decision about medical marijuana the 9th Circuit Court reasoned that homegrown for one's own use "is not properly characterized as commercial or economic activity." Moreover, it concluded that any health and safety considerations were alleviated if not eliminated by the requirement that a doctor's prescription was necessary.

Ironically, it is the Bush administration that is reviving the old fears of states' rights. The Department of Justice's top lawyer on the issue, Mark Quinlivan, speaking at an American Bar Association annual convention last August, compared the plaintiff's states' rights arguments to legal arguments made in the past by southern segregationists.

To which Taylor Carey, special assistant state attorney general in California responded that the Bill of Rights trumps state law. "When the government acted to protect the civil liberties of the children of Alabama, they acted with the highest degree of moral force. When they act to prevent critically ill people from obtaining medication...they are not acting with the same degree of moral propriety."

So here we are. Conservatives dominate all three branches of government. They are using their control of the legislative and executive branches to assert their authority to police individual behavior. Meanwhile, their brethren on the judicial bench are using arguments from a pre-New Deal era to deny them that authority.