April 22, 2008
The answer to today's question -- not just mine, but the Supreme Court's -- is no.
In the case of Gonzales vs. Raich, the Supreme Court ruled that Congress has the constitutional power to ban the use of marijuana, even when a state approves it for "medicinal purposes." Marijuana is on the list of prohibited substances under the Controlled Substances Act of 1970. It is classified as a Schedule I drug that has, according to the federal government, no "medical uses." That's the law of the land.
California voters apparently disagreed with that policy, so in 1996 they approved Proposition 215, known as the Compassionate Use Act. That initiative made it legal for patients to get and use marijuana for medicinal purposes. Advocates for medicinal use of marijuana argue that patients should be able to use the drug because it has palliative properties. Nobody wants patients with horrible diseases to suffer, and if all it takes is a little cannabis to ease pain, they say, states should be allowed to regulate the distribution of marijuana.
So far, so good. But when you disagree with a law, it's too easy to forget that we have a government of laws and not men -- in other words, not a dictatorship but a self-governing democracy. That means that the law applies to each of us equally, so you cannot ignore a law simply because you disagree with it. What you should do instead is challenge or try to change it.
A California resident did challenge it in Raich vs. Gonzales, but the state's law lost. The U.S. Constitution states, "The Congress shall have power to ... regulate commerce ... among the several states." These simple words have produced more litigation and disputes than any other clause in the Constitution. Reasonable people can agree or disagree with the court's "commerce clause" jurisprudence, and many agree with Justice Clarence Thomas' dissent in Raich, in which he wrote that local cultivation and consumption of marijuana is not commerce among the several states. But Thomas was in the minority, and because we live in a country of laws, we must follow the law as the court has interpreted it.
That's true for all of us, including myself, who have great sympathy for those in pain because of sickness or disease. I would do anything I could to help a sick or dying family member or friend, but there's a real dilemma when that "anything" is a violation of a valid law. Some people will do it anyway, and they face the risk of arrest and prosecution. It's a small cost relative to the enormous benefit of "government of laws and not men."
The importance of enforcing this federal law under these circumstances is an open question. But a claim that enforcement violates states' rights is just rhetoric, short of showing the law is beyond Congress' enumerated powers -- a claim the Supreme Court specifically rejected. And yet "state sovereignty" remains a refrain of legalizers. Rather than try to change the federal law, they would have their states simply ignore it in certain circumstances. That has nothing to do with state sovereignty; it's just lawlessness.
Charles "Cully" Stimson was a local, state and federal prosecutor, a military prosecutor and defense attorney, and a deputy assistant secretary of Defense. Currently, he is a senior legal fellow at the Heritage Foundation (heritage.org).
When the federal government banned alcohol, the supporters of Prohibition recognized that a constitutional amendment was necessary because Congress did not have the authority to impose a ban simply by passing a law. The early laws dealing with other intoxicants, including the Harrison Narcotics Act of 1914 and the Marihuana Tax Act of 1937, were ostensibly revenue measures -- again, because it was widely understood that the Constitution did not empower Congress to ban psychoactive substances it did not like. By the time of the Controlled Substances Act of 1970, Congress had dispensed with this pretense, decreeing not only production and distribution but even intrastate possession of certain psychoactive chemicals to be a violation of federal law. What changed in the meantime was not the Constitution but the Supreme Court's willingness to read the "commerce clause" as an all-purpose excuse for Congress to legislate in almost any area that strikes its fancy.
The transformation of a clause that was originally intended to maintain free trade among the states into a blank check for federal meddling has made a hash of the doctrine of enumerated powers, which holds that Congress has only those powers explicitly granted by the Constitution. The way federal courts now read the Constitution, Congress can do whatever it wants, unless the Constitution prohibits it (and sometimes even then). The Amazing Super-Elastic Commerce Clause that emerged from Franklin D. Roosevelt's New Deal has nearly obliterated the distinction between national and local matters at the heart of our system of government. Conservatives who consider themselves strict constructionists, federalists or foes of big government usually decry this development except when it comes to their pet issues, such as drugs.
Cully, it amazes me that you or anyone who believes in the rule of law can accept with equanimity the notion that grabbing a bag of marijuana from the dresser drawer of a cancer patient in Colorado or pulling up a cannabis plant in the backyard of an AIDS patient in California amounts to regulating interstate commerce. "No evidence from the founding suggests that 'commerce' included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value," Thomas noted in his Raich dissent. "In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."
By stretching the meaning of interstate commerce beyond recognition, the Supreme Court not only made life harder for desperately ill people harassed by federal officials who do not approve of the medicine that relieves their suffering, it drove a stake into the heart of the so-called federalism revolution that was supposed to restore some balance between the states and the national government. "If Congress can regulate this under the Commerce Clause," Thomas observed, "it can regulate virtually anything."
To ban marijuana, Congress should have sought to amend the Constitution through the arduous process prescribed by the framers, just as it did when it banned alcohol. Instead, it has amended the Constitution through legislative assertion and judicial acquiescence.
Jacob Sullum, a senior editor at Reason magazine and a nationally syndicated columnist, is the author of "Saying Yes: In Defense of Drug Use."
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