Beyond Medical Marijuana

Jacob Sullum | June 7, 2005

Outrageous as it is that the federal government (or any government) would try to prevent patients from using a homegrown medicine that relieves their suffering, the most important implications of yesterday's medical marijuana decision have little to do with medical marijuana per se. Although the case was provoked by the Drug Enforcement Administration's 2002 seizure of a mere six marijuana plants that Diane Monson was growing for her own medical use, that sort of raid is unusual. The federal government handles only about 1 percent of marijuana prosecutions, and it tends to focus on large-scale cultivation and sales. So while patients in California and other states that recognize marijuana as a medicine are understandably nervous now that the Supreme Court has given the DEA a green light to take away their medicine and arrest them, such cases wil remain rare. And over the long term, the whole medical marijuana issue may be rendered moot by the availability of legal cannabis-derived medicines such as GW Pharmaceuticals' Sativex spray (which is not approved in the U.S. yet) and inhalers that deliver THC and other cannabinoids without smoke (still to be developed).

Gonzales v. Raich will have a more significant and lasting impact on the balance between state and federal power, especially in the area of drug policy. The most plausible path to serious drug policy reform is state experimentation, as opposed to the wholesale repeal of prohibition at the federal level (much as I'd like to see that). The reduction in penalties for possessing small quantities of marijuana that we've seen since the 1970s illustrates how the war on drugs can become substantially less punitive and oppressive without congressional action. (The downside of the "decriminalization" trend has been the diminution of outrage about drug laws that no longer imprison recreational pot smokers for possessing small amounts of marijuana.) But in the wake of Raich, it's hard to imagine a state moving closer to true decriminalization by, say, eliminating all penalties for marijuana possession or allowing retail sales (as proposed by a recent Nevada ballot initiative). Even a narrow reform such as allowing doctors to prescribe lethal drugs to terminal patients who want to kill themselves--an issue now before the Supreme Court, which has agreed to decide whether the Justice Department can use the Controlled Substances Act to undermine Oregon's Death With Dignity Act--seems untenable in light of the super-elastic Commerce Clause endorsed by the Court in Raich.

Beyond drug policy, the possibilities for federal interference with intrastate activities and state policy decisions are virtually limitless, as the three dissenters noted. Whether the Constitution allows the federal government to prohibit people from growing marijuana for their own medical use because those plants, in the aggregate, have a "substantial effect" on interstate commerce (as five justices claimed), or because the ban is a "necessary and proper" part of a broader regulatory scheme authorized by the Commerce Clause (as Justice Antonin Scalia asserted in his concurring opinion), just about any intrastate activity, no matter how personal or limited in scope, could be covered by the same rationale, provided Congress worded the legislation properly. The majority's definition of "economic" activity ripe for aggregation--"the production, distribution, and consumption of commodities"--would include growing tomatoes in your backyard, crocheting a blanket for your grandchild, or making a birthday card for your mother. According to the Supreme Court, the only thing stopping Congress from regulating or banning these "commodities" is that it hasn't gotten around to them yet.

Comments

|6.7.05 @ 2:02PM|#

The Court is an ass.

|6.7.05 @ 2:15PM|#

I thought I had been smoking medical marijuana, as reason.com turned into powerblogs.com. Weird.

|6.7.05 @ 2:25PM|#

the whole medical marijuana issue may be rendered moot by the availability of legal cannabis-derived medicines such as GW Pharmaceuticals' Sativex spray (which is not approved in the U.S. yet)

Well, it ain't legal till it's approved. I would not be shocked if the government failed to approve Sativex. It would be phenomenally stupid, but I wouldn't put it past the government.

|6.7.05 @ 2:27PM|#

The Court is an ass.


The Court is only an ass as far as letting us down at the end. Considering the progression of such action is Legislature -> Executive -> Judiciary, the problem didn't start with the court, it just ended there.

If you really take issue with the situation you would do better to take a long hard look at those you elect to office rather than lay it on the judiciary to reign in the populists.

digamma|6.7.05 @ 2:54PM|#

The real significance of Raich is that it shows that Lopez and Morrison were not harbingers of a federalist revolution, but rather insignificant anomalies.

|6.7.05 @ 3:07PM|#

This is why the states need to push for a repeal of the 17th amendment. For those who don't know, the 17th calls for the direct election of Senators. Before it they were elected by the state legislatures. This was how the states got a say in what happened at the federal level.

|6.7.05 @ 3:08PM|#

Of course the Court is an ass. What can you expect from a Court that put that other ass, George W, in the White House?

|6.7.05 @ 3:10PM|#

Bingo, digamma. At least for the Rehnquist court, which might be in its final year. Once some of these old farts get replaced there'll be fresh opportunities and fresh horrors. That's assuming that at some point in the future, a president will be able to find a nominee who won't be rejected or filibustered in the Senate. And that's probably a tougher gauntlet to go through for a principled federalist than for a wishy-washy moderate.

|6.7.05 @ 3:20PM|#

Relax, people.

I found this article that says people smoking pot for medicinal purposes will most likely not be hunted down by the feds:

http://news.yahoo.com/s/ap/20050607/ap_on_go_su_co/scotus_medical_marijuana

I wonder how long it will be before smoking pot is like teens smoking cigarettes: technically, its illegal, but no cop is going to bother putting the cuffs on anyone.

|6.7.05 @ 3:36PM|#

panurge,
We are not upset simply because we see our ability to smoke pot threatened. I don't, btw.
We are upset because it looks as if many factors are going to need to get worse before there is any light at the end of the tunnel.
Mixed metaphor?

|6.7.05 @ 3:39PM|#

This is why the states need to push for a repeal of the 17th amendment.


At the expense of sounding like a wingnut (even among libertarian circles), Zell Miller had a fine say on this matter before he turned into a lunatic. I wish I could dig up that article, but I am in a bit of a hurry at the moment.

|6.7.05 @ 4:27PM|#

Metalgrid, is this what you're looking for?

Adam|6.7.05 @ 4:34PM|#

Found a Zell Miller speech on the 17th amendment here. It was April 2004.

|6.7.05 @ 4:42PM|#

Devil's Advocate:

Alright so Cali in prop 215 back in 1996 legalized medical MJ which didn't jive with the Federal Law. What would be the opinion of the peanut gallery if state legislation called for the legalization of kiddy porn or perhaps treason. Not sure how you legalize treason but I think I recall that it was one of only two federal laws we had back in the day. What are some opinions on this?

Thinking outside this issue.

Do states have the right to make their own (perceived)mistakes?

|6.7.05 @ 4:56PM|#

Gut reaction is that both kiddy porn and treason involve a verifiable victim(s), whereas some cancer patient smoking pot to relieve their pain does not.

I'm sure there are others here who can argue the same point for other reasons and much more eloquently.

R C Dean|6.7.05 @ 4:56PM|#

I found this article that says people smoking pot for medicinal purposes will most likely not be hunted down by the feds:

"Most likely not" is hardly the most comforting standard against which to gamble your life and liberty.

Do states have the right to make their own (perceived)mistakes?

Yes, otherwise the state governments have no reason to exist except as administrative departments of an all-powerful central government. You are not free (or sovereign, in the case of a state) unless you are free to be wrong.

|6.7.05 @ 4:58PM|#

"Do states have the right to make their own (perceived)mistakes?"

Yes. As you can read from O'Connor, the states were intended to be democracy testing centres.

The thing with kiddie porn would never happen, nor would treason, so those examples don't really do it for me. But look how it used to be with the drinking age. The feds couldn't do anything about it until they got the bright idea of tying highway money to the issue.

|6.7.05 @ 5:19PM|#

"The feds couldn't do anything about it until they got the bright idea of tying highway money to the issue."

Which raises the question: Does the fed have to bother with bribing the states to raise the drinking age or lower the BAC or set highway speeds or anything else for that matter? It seems to me, that if the commerce clause is this broad, in light of Raich, then surely the drinking age has some affect on interstate commerce. Are states now COMPLETELY superfluous?

|6.7.05 @ 6:20PM|#

Lemme try this again:

I think that's the main issue, bearded one.

Although I am far from being knowledgable about constitutional law.

fyodor|6.7.05 @ 6:24PM|#

I wonder how long it will be before smoking pot is like teens smoking cigarettes: technically, its illegal, but no cop is going to bother putting the cuffs on anyone.

We thought that day was right around the corner...thirty years ago.

|6.8.05 @ 3:07AM|#

If you really take issue with the situation

No, I didn't really mind mistreatment of sick people and the further erosion of the Constitution, I was just copping a 'tude. You caught me.

you would do better to take a long hard look at those you elect to office rather than lay it on the judiciary to reign in the populists.

Damn, what a concept - commentors on a libertarian blog could have issues with people in office!

Who'd have thunk it?

|6.8.05 @ 9:48AM|#

The US was already number 13 on the list of freest countries. How much lower will this ruling cause it to slide?

|6.8.05 @ 10:27AM|#

It is interesting to think about whether the bribery angle was really ever necessary to get the drinking age raised to 21-- sounds like it is just a matter of clever drafting: "Congress, having found that underage drinkers on our nation's highways pose a significant impediment to interstate commerce, hereby enacts the Transportation Freedom Act, whereby it shall be illegal for any person under the age of 21 years to buy, possess, or inbibe alcohol or alcoholic beverages..."

Of course, way back when, people thought you actually needed a constitutional amendment to outlaw alcohol altogether-- how quaint.

|6.9.05 @ 5:04PM|#

This just in: The Canadian Supreme Court has struck a major blow
for private health care in that country.

Any way we can switch our Supreme Court with theirs?