IT'S NOT THE CANNABIS, IT'S THE CONSTITUTION

Medical Marijuana Controversy Turns the Feud over Federalism on Its
Head.

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--normally a conservative stance--as their
cause celebre.

Their opponent is none other than ultraconservative Atty. Gen. 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
will be triggered and 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. Under our system, 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 in
opposition to federalism to the same degree that conservatives have
rallied around it.

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 found themselves arguing 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 medical
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 cooperative in Oakland 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 than 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 and experimentation.

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