Unconstitutional Cannabis

If this editorial board were Congress, we would enact a law allowing marijuana to be used for legitimate medical purposes, such as alleviating intense pain for cancer patients undergoing chemotherapy. In fact, we strongly urge Congress to pass such a law, now that the U.S. Supreme Court has ruled that “compassionate-use” laws in California and other states are invalid under the “commerce clause” of the Constitution.

But we are not Congress -- and neither is the Supreme Court. So we cannot be terribly offended by Monday’s ruling, however much needless suffering it may cause. Blame for that suffering now lies squarely with Congress and the president. The nation’s draconian drug laws have lost a safety valve.

Many of today’s national leaders have personal experience with the effects of the evil weed. So do many of today’s voters. There is much debate about the wisdom of the drug laws. By contrast, there is almost no debate about the cruel stupidity of refusing an exception for medical marijuana. Unless the president and Congress wish to appear (even more) cruel and stupid, they should trump the Supreme Court.

Before you get indignant at the Supreme Court, however, think about how you might have reacted in the reverse situation. Suppose Congress did as we asked and enacted a federal law allowing compassionate use of marijuana. And suppose that California continued to arrest doctors and patients under its own drug laws, which had no such exception. Would you have said: “Well, that’s federalism for you?” Or would you have found the arguments of the majority in this case, Gonzales vs. Raich, strangely compelling?

The commerce clause authorizes the federal government to regulate trade within the U.S. and abroad. For decades, during and after the New Deal, this clause became the all-purpose authority for anything the federal government wanted to do, or to prevent individual states from doing. Sometimes this was a stretch. The 1964 Civil Rights Act, for instance, was justified constitutionally by the need to regulate interstate commerce.


Federalism and the commerce clause bring out the hypocrite in all of us. If you’re against some government policy, you tend to believe that the problem would be better handled at the state level. If you’re for it, you believe that it is one of the nation’s core functions and must be addressed nationally. There are enough contradictory Supreme Court declarations to allow either case to be made.

In the tired arguments of the last century about the courts and the Constitution, it has usually been liberals with ambitious national agendas favoring a strong commerce clause that clears away the underbrush of state laws in their path. Meanwhile, conservatives have defended the sanctity of “states’ rights.” When the issue is the medical use of marijuana, the siren song of states’ rights tempts liberals and libertarians, while more mainstream conservatives are happy -- on this occasion -- to see the jackboots of Washington come stomping on the prerogatives of Sacramento. Thus Gonzales vs. Raich is an excellent litmus test of intellectual integrity.

Chief Justice William H. Rehnquist and Justice Clarence Thomas pass the test. They dissented from Monday’s ruling on the grounds that the federal government has no right to force its drug policy on the state of California. We want to pass the test too. Given how many policies this page has happily urged the federal government to impose on ... well, Alabama and Mississippi and South Carolina, if not California, that clearly means supporting the court’s decision.