A Conservative Supreme Court: A Step Forward for Medical Marijuana?
Perhaps this may be a pipe-dream (excuse the pun), but let me explain. Conservative jurists tend to value states’ rights and generally disagree with the overuse of the Commerce Clause, which is the part of the Constitution that gives Congress the broad power to make federal regulations. The Commerce Clause allows Congress to regulate virtually anything in the United States that affects inter-state, commercial activity. In 1970, Congress used this authority to pass the Controlled Substance Act and it placed marijuana into the most prohibitive classification, Schedule One. Schedule One basically states that the substance has no medical value and is unacceptably dangerous and addictive (though cocaine and PCP are both Schedule Two drugs because they have certain medical applications). Until this law is changed, the federal government will not recognize medical marijuana, even in states like California that have passed laws in favor of it. In fact, federal agents regularly arrest terminally ill patients who reside in such states, a policy that famously contributed to the death of writer Peter McWilliams in 2000.
The last big medical marijuana case, Gonzales v. Raich, contested the federal government’s ability to override state laws regarding medical marijuana. Specifically, Angela Raich, a terminally ill resident of California, argued that the federal government had no right to regulate her use of marijuana since her plants were grown and consumed wholly within California and there was no commercial exchange. In other words, if commerce had not been involved, then the Commerce Clause could not reasonably be applied. Unfortunately, the Supreme Court voted her down, 6-3. The court held that the federal government has a legitimate interest in preventing illegal drug use and that the Controlled Substance Act clearly prohibits the medical use of marijuana. Surprisingly, the three dissenting judges were some of the most conservative judges on the court! That’s right, the dissenting judges were William Rehnquist, Clarence Thomas and Sandra Day O’Connor; Scalia sided with the federal government on this one.
Justice O’Connor described the decision as, “…tantamount to removing meaningful limits on the Commerce Clause.” Justice Thomas’ dissent was more surprising, considering that he is a pro-life conservative who was appointed to the court by Bush the Elder. Yet, Justice Thomas was scathing in his dissent:
The majority is not interpreting the Commerce Clause, but rewriting it…. To evade even the modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “production, distribution, and consumption of commodities.” This carves out a vast swath of activities that are subject to regulation. If the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.
To which Thomas adds:
One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.
It is rather interesting that in Gonzalez v. Raich, the most sensible voices on this matter – one that is typically associated with hippies and tree-hugging leftists – were actually some of the most conservative judges on the bench. More liberal judges on the Court argued for the status quo, claiming that, “…by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.” Except, there are accepted medical uses in twelve states (Rhode Island most recently enacted legislation protecting patients’ rights) and I find it hard to believe that all of the people who use pot medicinally are actually using a placebo.
It is worth noting that the Drug Enforcement Agency also actively rejects any applications to study the drug in private, unbiased, scientific environments. Professor Lyle Craker of the University of Massachusetts, with help from the ACLU, is currently challenging this matter in the Supreme Court. In a personal interview, Prof. Craker was very frank with me about his research: “Why don’t we just study [cannabis] and if it works, we can help people. If it doesn’t, we can drop the issue and move on.” The DEA’s stated problem with Craker’s research was the security of his facilities: if someone hypothetically broke into the laboratory, “there would be marijuana all over the streets of Amherst.” This is obviously a somewhat dubious claim.
Interestingly, established medicinal uses of marijuana frequently align with common stereotypes of the drug’s effects on its users. For example, many people are aware of “the munchies,” a state of insatiable hunger that results from smoking marijuana. Well, individuals who have lost the ability to eat either from a disease or medical treatment, use marijuana to stimulate their appetites, diminish nausea, and gain weight. And the stereotype of forgetfulness among pot smokers? Recent studies have suggested that cannabinoids (the active ingredients) could be used to treat post-traumatic stress disorder as well as other anxiety conditions by blunting one’s memory faculties. The drug offers many other therapeutic benefits, from pain relief to reducing intraocular pressure for glaucoma patients. Queen Victoria is said to have used cannabis to relieve menstrual cramps. Regarding the plant’s general safety, it is “less toxic than many foods that we commonly consume.”
In other words, the majority decision ignored a great deal of medical and anthropological evidence that suggests that there are indeed legitimate uses for marijuana. Why, then, does the Court maintain such myopic opposition to the concept of medical marijuana? After all, Congress is not a medical body, nor is it infallible. Legislation is at times incorrect, immoral or improper. That is precisely why we have a third branch of unelected legal umpires who, to use John Roberts’ analogy, “calls balls and strikes.” Congress may be a body of elected officials who supposedly carry out the will of the people, but occasionally people vote for things that are not in their best interest, like a police state that fuels itself with drug money.
Despite what many on the left have come to believe, an increasingly conservative Supreme Court is probably not the end of American liberties. Rather, it is an opportunity to further certain blue-state initiatives by chipping away at the paternalistic elements of the federal government. This has already been demonstrated by the recent decision regarding Oregon’s “Death with Dignity” law. So, now we have a curious set of circumstances in which physicians in Oregon can prescribe lethal doses of barbiturates to terminally ill individuals, but those same patients cannot obtain any amount of marijuana for personal relief. That might be a bad message to kids, or a “slippery slope” as we are led to believe. Well, that is a losing argument. As a term, “states’ rights” used to be clouded with racist overtones, but now with issues such as gay marriage, physician-assisted suicide and drug policy reform, the term has taken on a new meaning for liberals. Medical marijuana will eventually be the first victory in the grander scope of reforming drug policy; the public is already behind this commonsense policy. In fact, decriminalizing marijuana in general is a position supported by the American Medical Association, the American Psychiatric Association, the American Bar Association, and the National Council of Churches. Ironically, it may just take a more conservative court to get it done.
