What were those justices smoking?

The medical marijuana ruling is legally and morally flawed.

Nick Gillespie | June 7, 2005

Last week's Supreme Court ruling against medical marijuana was widely expected, but that doesn't make it defensible from a legal or moral perspective.

Writing for the 6-3 majority in Gonzales vs. Raich, the 85-year-old liberal Justice John Paul Stevens solemnly counseled patients suffering chronic pain to turn to "the democratic process" for comfort. "The voices of voters," he mused, may "one day be heard in the halls of Congress" on behalf of legalizing medical marijuana.

His plea that those who need medical marijuana demand - and wait for - a change in federal law is weak medicine at best. The simple fact is that California voters, and voters in several other states, have already democratically raised their voices in support of allowing the use of marijuana in controlled situations for medical reasons.

While we consider whether the Republican-controlled Congress will pass a medical marijuana bill, we can listen to the howls of pain from people such as Angel Raich and Diane Monson, who brought the case to the Supreme Court.

They are Californians who suffer from a brain tumor and a degenerative spinal disease, respectively. Raich and Monson have testified that marijuana eases pain and helps them function in ways that other drugs do not. Most medical researchers find that plausible, as did 56 percent of California voters when they approved Proposition 215 legalizing medical marijuana in 1996.

In 2002, however, the Drug Enforcement Administration began to confiscate the drug from users because marijuana remains illegal under federal law. Raich and Monson sought an injunction against confiscation and other enforcement actions.

Now a Supreme Court majority has ruled that state laws allowing medical marijuana run afoul of the Constitution's "commerce clause," which gives the federal government supreme power to "regulate commerce among the states." Invoking Wickard vs. Filburn, a 1942 case involving laws governing wheat production, it claims, among other things, that even small amounts of homegrown pot used for medical purposes might well make it impossible for federal law enforcement to police the national market in illegal drugs.

Yet, as Justice Sandra Day O'Connor noted in her dissent, the government "has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime." As important, she wrote, it's not even clear that medical marijuana is commerce as we normally understand the term.

In a concurring dissent, Justice Clarence Thomas argues flatly that "if Congress can regulate (medical marijuana) under the commerce clause, then it can regulate virtually anything - and the federal government is no longer one of limited and enumerated powers."

This is no small matter. In recent years, the Supreme Court has reeled in Congress' powers under the commerce clause. The court struck down the federal Gun-Free School Zones Act, which prohibited the possession of firearms within 1,000 feet of schools, and the Violence Against Women Act, which would have allowed victims of sexual crimes to sue in federal court. Such issues, said the court, were the states' responsibility and should remain beyond Congress' ever-expanding grasp. Partly because of such decisions, court watchers started to talk about a revival of federalism and states' rights as the legacy of Chief Justice William Rehnquist (Rehnquist joined Thomas and O'Connor in the Gonzales vs. Raich dissent.)

Indeed, in her opinion, O'Connor stressed that having states experimenting with state medical marijuana laws "exemplifies the role of states as laboratories" of democracy. According to the majority, though, such experiments are forbidden when it comes to medical marijuana that never leaves California or is never bought or sold.

If the legal reasoning behind the majority is puzzling, the moral effect is not. Medical marijuana users can now add possible jail time to their list of problems. As Monson told the media, "I'm going to have to be prepared to be arrested."

California Attorney General Bill Lockyer claimed that the decision won't change police priorities, so there was no reason to panic: "Nothing is different today than it was two days ago." Except, of course, the legal status of medical marijuana.

Will Monson, Raich or any of California's medical marijuana users be able to call him for bail money from federal jail?

Nick Gillespie is editor-in-chief of Reason magazine. This story originally appeared in the Los Angeles Times and can be viewed in that format here.