CANNABIS ON CONSTITUTIONAL PRINCIPLE

Even in a city where cross-dressing is a protected right - if not a
cherished tradition - San Francisco leaders have turned heads recently by
appearing publicly in a new type of trans-political apparel. Members of the
ultraliberal San Francisco City Council have suddenly taken on states'
rights as their cause celebre.

Their opponent is Attorney General John Ashcroft - normally a states' rights
advocate - who is asserting the supremacy of the federal government.

At issue is the desire of California citizens to allow seriously ill
patients to use medical marijuana to relieve, their pain and discomfort.
Advocates in San Francisco have proposed a program in which the city
government itself would grow and distribute medical marijuana; a November
ballot measure is planned. If San Francisco voters approve the measure, a
major confrontation over states' rights may prove, to be one of the most
significant federalism cases in decades.

Federalism protects the states from the encroachment of the federal
government, leaving the primary decisions of government to the individual
states. It is a principle based on the idea that power is safest when held
closest to the people. Each state is allowed to try what U.S. Supreme Court
Justice Louis Brandeis once described as "novel social and economic
experiments" in solving contemporary problems.

Federalism is often wrongly seen as a Republican or conservative position.
Liberals have long considered the federal government to be more enlightened
than the states. For example, during desegregation, federal courts and
Congress proved far more protective and active in the area of equal rights.
As a result, liberals have. often rallied against federalism to the same
degree that conservatives have rallied around it. I

Both conservatives and liberals now face a quandary. While liberals were
once happy to see the federal government shape state policies in its own
image, they are less enthusiastic now that the image is that of Ashcroft.

In California, advocates argued for the use of medical marijuana to a man
who does not smoke, drink or dance and who probably viewed the 1936 movie
Reefer Madness as a documentary.

Liberals have suddenly discovered federalism and the right of state
self-determination. While conservatives have long defended states' rights,
they now face states that want to experiment with gay marriages, medical
marijuana and assisted suicide. Accordingly, conservatives have suddenly
discovered the need for uniform federal laws in traditional state areas.

The controversy over medical marijuana has less to do with pot than it does
principle.

Regardless of the merits of, medical marijuana, Californians are rightfully
aggrieved by the federal government telling them it alone can approve
certain drugs for the use of the terminally ill While growing pot in San
Francisco may seem less inspiring than dumping tea in Boston, it is a
defiant act that speaks of the right of citizens to self-determination.

If San Francisco draws this line in the constitutional sand, it will force
conservatives on the Supreme Court to make a choice between their principles
and their personal inclinations.

In 2001, the court considered a case involving a federal crackdown on a
cooperatives in Oakland, Calif., that distributed medical marijuana,
consistent with state but not federal law. In a decision written by Justice
Clarence Thomas, the Supreme Court rejected the cooperative's claim of
medical necessity.

However, in a virtual invitation for challenge, the court expressly reserved
the question of whether the federal government was violating federalism
guarantees in its enforcement of drug laws over state medical marijuana
measures.

The San Francisco program may finally answer that question. Frankly, I am
more concerned with the Constitution that the cannabis in this controversy.

Whatever societal risks are presented by terminally ill patients getting
stoned, they pale in comparison with the political risks of yielding to
federal authority in this area. Of course, it may be too much to hope that
there is more than mere opportunism in the recent embrace of federalism.

Yet perhaps this controversy will show that liberals have much to gain from
federalism, particularly in states like California with a history of bold
social programs.

In the end, California may not be right about medical marijuana, but it has
a right to be wrong.