December 19, 2004
Medicinal Marijuana and the End of a Limited Government
A couple of weeks ago, the Supreme Court heard oral arguments in Ashcroft v. Raich, a case about a woman who used home-grown medicinal marijuana to reduce the pain from an inoperable brain tumor. Her actions were legal under California law, and she sued to enjoin the federal government from using its power under the Controlled Substances Act to take away her medication. The most important question in this case is not rights to medication, but the proper scope of our federal government.
A little historical background will help put this case into context. The constitution created a national government of limited means- limited to the enumerated powers listed in Article I, Section 8 (and augment by subsequent amendments). Until the 1930s, the power of the federal government power was relatively confined to these enumerated powers, and some arguably logical extensions. Then Supreme Court, under political pressure from Franklin Roosevelt, reversed its rulings and gave the federal government power to regulate anything under the interstate commerce clause. Perhaps the most egregious case in this era was Wickard v. Filburn, where the Court accepted that an individual farmer growing food for himself and his farm significantly affected interstate commerce and thus could be forced to comply with federal law. This trend of using the commerce power to accomplish any ends the federal government wanted continued throughout the rest of the century, as the Court accepted civil rights legislation (Katzenbach v. McClung), environmental legislation and just about every other kind of law as a proper exercise of the power over commerce. In short, the commerce clause power became a blank check for Congress.
But in 1995, the Supreme Court decided U.S. v. Lopez, declaring that the power over interstate commerce did not allow Congress to ban guns from school zones (in a mind-boggling dissent, the 4 liberal justices actually argued that the commerce clause power was sufficient to uphold this law). In the most important post-Lopez case, U.S. v. Morrison, the Supreme Court struck down the Violence Against Women Act as exceeding Congress' commerce clause power (again with the four liberal justices arguing that fighting domestic violence was within the commerce clause!). These two cases ushered in the so-called federalism revolution in which the Supreme Court was supposed to take a harder look at legislation to ensure compliance with the constitution.
In Ashcroft v. Raich, the government argued that it had the power to stop Ms. Raich from taking medical marijuana as part of its national effort against drug use. It argued that her private activity of growing medicine for herself affected the market for marijuana, and this effect justified the federal government using its commerce power to stop her. Notice that under this argument virtually anything can affect interstate commerce because almost every private action has some impact on the price of some good. There are many more intricate arguments you can read about during the oral arguments, but they all come down to one simple question- does the power: to regulate Commerce...among the several States: really mean it can stop an individual from growing a substance for their own use within their own home?
The answer to this question may decide if the federalism revolution is meaningful, or just a small hiccup in the ever-extending power of the national government over our lives. If the experts are correct, and the Supreme Court rules that the federal government has the power to stop an individual from using medicinal marijuana that she grows for herself, the impact of Lopez and Morrison will be severely limited. The decision will also show the true colors of the justices. Do Justices Thomas, Scalia, Rehnquist, Kennedy and OConnor really take the concept of federalism seriously, or will they allow their preference against drugs to guide their decision at the expense of our constitution? Are justices Breyer, Ginsburg, Stevens and Souter so committed to the idea that our national government has absolutely no internal limits on its power that they are willing to allow this woman to have her pain-relieving medication taken from her by the federal authorities?
The import of this issue was summarized by Professor Jonathan Adler:
Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.
Our framers believed that the scope of the government they created would be limited and defined. If they could see the way liberal judges (now conservatives too) have stretched the simple words: to regulate Commerce... among the several States: they would be confused and shocked. More importantly, they would see it as the end of the system of enumerated powers that they set up. Many nations have a national government with general police powers in all areas of life- America does not. But if the Court says that power over interstate commerce is so broad that it is basically a general police power, then the central object of our constitution has come to end.
Posted by Misha Tseytlin at December 19, 2004 10:09 PMOur government should never stop any of us from taking medication(drugs), legal or not, that relieves pain and/or symptoms of any condition that will ultimately result in our deaths when untreatable.
If it is used solely for treatment and not distributed to anyone else, I ask, what right does our government have to stick their big nose in anyway?
The claim that smoking marijuana is bad for your health is completely ignorant when the sick person has a death sentence from an illness anyway.
I would also go as far as to say that, if relief comes in the form of marijuana from any ailment, we should be allowed to use it.
While I agree that the issue of the feds intervening in the California and Local laws regarding marijuana use is deplorable, I hesitate to say that it is unconstitutional. I am more bothered by the double jepardy issues.
I think National Drug policy is both unjustly repressive and political persecution and it is also just plain dumb. The liberal use of the commerce clause has been around for some time and I think recognizes the fact that communications and transportation have effective shrunk our world.
I don’t believe we live in the same world of our forefathers. States can no longer function in the real world as autonomous units. We no longer live in isolated economies, even globaly.
Posted by: Greg at December 19, 2004 11:48 PMThough I support medical marijuana, I’m somewhat ambivalent because I think it detracts from the more fundamental argument against prohibition in general.
Drug cartels, smugglers and dealers don’t want marijuana legal because the black market brings premium pricing. Big Pharma doesn’t want it legal because it will compete with patentable synthetics in a few lucrative market segments. Politicians don’t want it legal because they are a bunch of spineless wanks who are afraid of being seen as weak on crime. The DEA doesn’t want it legal since they’d be out of a job, and forfeiture laws and good old-fashioned corruption are great sources of income for them.
Posted by: Joseph Briggs at December 20, 2004 12:52 PMGreat follow-up Mr. Briggs.
Personal gain over individual rights and choices seem to be taking over every aspect our lives.
I think its completely disgraceful that anyone would want to take something that is as harmless, and as helpful to people with degenerative glaucoma, to those in pain, or to those who need to kick-start their appetites due to cancer or Aids, and legislate it as part of the “war on drugs”.
Marijuana is gift from nature - and should be treated like any other medicinal herb with beneficial properties to humans, in my opinion. Instead, they have made it into some ridiculous kind of moral question - never entertaining the idea that their wish to withhold it from those who need it, is in fact, an act of immorality.
I look on this focus upon denying medicinal marijuana as just another go at the government trying to control people under the guise of “moral values”. Like the issue of Gay Marriage, or abortion, it is an attempt to impose a state-mandated idea of right and wrong on the citizens of this country, while simultaneously abandoning the founding principle of states rights.
Good article, Misha.
Misha -
Great write-up. This could lead to a very interesting split in the court.
Re the comments above: The tendancy of liberals and libertarians here and elsewhere to underestimate the effects of drugs on society is almost laughable. Look at any society where drugs have achieved social and legal acceptance: China in the mid-1800’s, Siberia, Somalia and elsewhere today. All have experienced serious economic and social malfunctions. Families fall apart, healthy wageearners drop out of the production stream, and the country becomes dependent on its drug suppliers.
Holland, as a side note, is something of an exception to the rule, though primarily because though drugs are legal, they are very much looked down on by most adults.
If the U.S. legalizes drugs, it will cause a massive increase in the number of people living on the streets, living off their families, or living off society via welfare. Remember alcoholism? It’s a much smaller problem than it was before Prohibition. If drugs become legal, look for an upswing in domestic violence, degradation of public spaces, and decreasing social mobility. Drugs have a serious negative impact on society, and as a society we should be wary of introducing addictive, destructive substances for any reason.
Posted by: Chops at December 20, 2004 04:27 PMChops:
“The tendancy of liberals and libertarians here and elsewhere to underestimate the effects of drugs on society is almost laughable.”
We’re not talking about the effects of drugs on society. We are talking about the beneficial affects of marijuana upon sick people. Marijuana that people get legal prescriptions for from doctors to use because it helps them.
Where did you see anyone say that making all forms of drugs legal was a good idea?
“Holland, as a side note, is something of an exception to the rule, though primarily because though drugs are legal, they are very much looked down on by most adults.”
Drugs are looked down on, as they are in most cultures. But marijuana and hash they don’t seem to have a big problem with.
“If the U.S. legalizes drugs,”
Not drugs, only marijuana.
“it will cause a massive increase in the number of people living on the streets, living off their families, or living off society via welfare.”
Nah.The only thing that marijuana seems to increase is late night visits to 7-11 for the procurement of salty snacks and chocolaty treats, along with a tendency to have a pretty poor short-term memory.
“Remember alcoholism?”
Yeah, its everywhere. Ever hear of the term _Drunk Driving_? Now, have you ever heard of the term Marijuana Driving?
Most likely you haven’t, because other than being rather annoying to those who wanted to make the light before it changed, driving _under_ the speed limit doesn’t risk too many lives.
Besides, how can one distinguish between those drivers and the old people who drive way too slowly all the time?
“It’s a much smaller problem than it was before Prohibition.”
That’s debateable. And it leaves out the fact that there weren’t that many cars on the road before Prohibition.
“If drugs become legal, look for an upswing in domestic violence,”
Marijuana makes people mellow, as relaxed as a wet noodle, and causes them to think that everything is funny. Very unlike alcohol.
“degradation of public spaces,”
Yeah, roaches and pipe ash are really so much more litter- producing than alcohol.
“and decreasing social mobility.”
That’s funny, when I was a highschool and college kid, it was always the rich kids who always had all the drugs.
“Drugs have a serious negative impact on society”
Drugs, yes. But marijuana doesn’t seem to have a really serious impact either on long term health, or upon society.
“and as a society we should be wary of introducing addictive, destructive substances for any reason.”
I think you should go tell that to Big Pharma, not to people who use medicinal marijuana or we who support that relatively harmless choice of pain treatment and/or appetite inducer.
Posted by: Adrienne at December 20, 2004 05:17 PMchops, the same conincidence arises in societies with the rise in homosexuality. Could then it be thay homosexuality causes downturns in economics? How about alcohol in America? Seems to me after legalizing it, again, we had the greatest economic growth in history.
Conicidence does not cause make, Chops, your argument on this matter lacks any logic, data, or evidence.
Posted by: David R. Remer at December 20, 2004 09:53 PMChops: P.S., legalizing only leads to responsibility training. Illegalizing leads to hidden irresponsible useage. There is ample data that is true. Our whole society has a set of rules (in workplaces) and morays and social customs to discourage irresponsiblie alcohol useage. Whether legal or illegal, there will be users and some will be irresponsible. Doesn’t matter whether it is legal or illegal, you will never eradicate irresponsibility.
And that is what those opposed to legalization fear, irresponsible useage. Ergo, illegalization has no effect. It is a biased argument which has no merit in fact. It is about responsibility. Many folks, some my friends, smoke marijuana. They do so responsibly, never driving while stoned, never going to work stoned, in fact, since we are all older now, with responsibilities, their useage is infrequent.
Youth leans toward lack of experience in responsibility, so youth is more likely to experiment with drugs. But, one fact speaks volumes. For 40 years youth drug useage was rampant. Then a 1st lady came along and said to America’s youth, “Just say no”. Her campaign did more to reduce youth drug useage than all the laws on the books making criminals of our young and old alike. It is about responsibility training.
It would also likely be a wash as to legalizing it creating more users, vs. the loss of users due to the fact that it is no longer illicit. The fact that it is illicit draws many toward it. If it is legal, other illicit behavior would entice, not necessarily drug useage.
Posted by: David R. Remer at December 20, 2004 10:08 PMWhile I hate to continue this bashing of Chops, his/her statement “Drugs have a serious negative impact on society…” is true in my opinion. Look at Ritalin. But for all of our thoughts on this issue, I think the main focus should be on limiting the size of the federal government, not the issue of whether or not marijuana is good/bad for you. For me, it boils down to what this woman does FOR herself, TO herself is no one’s business but HERS. We’ve let the ideas of our constitution slip away in small increments over many years, and it’s time to start getting it back. One voice at a time, culminating in a ROAR!
Posted by: Bob Thompson at December 21, 2004 04:45 AMExcellent article, Misha. As you rightly point out, if the SCOTUS decides against Raich, it will be a triumph of a few individual judge’s moral values over the Constitution of the United States.
Bob, I add my name to your comments. One of the absolutely positive platform issues of the Libertarian party that I respect is their position on limiting the scope and power of federal government intrusion onto and over individual citizen’s lives and choices. It has become overly burdensome to individual liberties, far too costly, and far, far too corrupt.
Posted by: David R. Remer at December 21, 2004 03:49 PMDavid R.R.
I’d have to disagree with you that the phrase “just say no” had any effect on whether or not people smoked a little reefer or not. I know it didn’t stop me. (;)
RapidRay, it didn’t stop a lot of folks. But, the Justice dept, documented a large drop in adolescent and pre-teen use after the campaign began for a few years. It is still lower today than before the 1st Ladies Reagan’s campaign, largely attributed to in school Just Say No programs still in effect today.
Posted by: David R. Remer at December 21, 2004 06:54 PM
David,
Do you know whether those ‘Just Say No’ programs are actually educational studies in depth of what drugs do to a person’s body, brain and life - including discussions on the general havoc that drugs and drug addicted people wreck upon society? Or is a bare-bones abstinence message all they are selling with these programs?
I remember when I first heard about the JSN program years ago thinking: oh yeah, sure, just telling them to say no will be really helpful to the kids - about as helpful as just telling them to say no to their sexual urges will keep them from going out and getting pregnant!
(And now sadly, it sounds like that _is_ about all the info they’re getting in some schools about sex and reproductive health!)
Adrienne, the one my daughter went through in the 5th grade, was pretty comprehensive for 10 year and 11 year olds. There was some misinformation like Marijuana leads to stronger drugs implying the cravings must be satisfied by something stronger. ALso that MJ is addictive. Other than those two falsities, it was pretty accurate. They covered a wide range of addictive and recreational drugs, what the major effects are on the body and brain, and a good deal about addiction. Also, a lot about peer group pressure. That was here in Central Texas.
I was fairly impressed, and my daughter, now 14, still holds to what she was taught. The fact that her parents told her the truth and the school backed it up fairly accurately, so far, has had a lasting effect on her. She would not even consider trying drugs so far, as much for how getting caught could mess up her daily life with family and friends as the deleterious effects on her mind and body.
In other words, the Texas JSN to drugs course is far more objective and comprehensive than some of its sex education is. She went through sex ed too, but, her sex ed class last year (13) was fairly objective, a product of our county school system which so far has been fairly progressive, even though it has a large majority of Republican voting constituency.
Posted by: David R. Remer at December 21, 2004 08:24 PMDrug statistics from an agency that gains funding by showing it’s effectiveness are suspect at best.
Prohibition simply creates an underworld economy.
Drug dependency is an educational and health issue not a law enforcemnet issue.
Drugged driving is a law enforcement issue, blood concentrations of Marijuana are not easy to establish with regards to impairment. However, impairment due to antihistamines, lack of sleep, emotional upset, and old age are equally problematic driving enforcement issues that we have not found an effective means to enforce.
We have created a prison economy based on drug enforcement. This is a sign of a repressive non democratic society. Stating that drugs destroy society is simplistic, does not follow modern social studies, and ignores other issues in those societies cited that created problems.
Every culture ever studied moods alters by some means. It is in the nature of man. Education, Mental Health issues, and economic repression are the real issues that satus qou American politics does not address at this time.
Posted by: Greg at December 22, 2004 04:26 AMGreg, while agree with everything you said, after your initial statement, I have to point out that to date, there is data from agencies that keep records, and then there is personal projection. I find personal projection to be fraught with bias and wishful thinking. Though, as you say, the agency data may be biased, it is nonetheless, the only data we have. Given that youth crime is also down, (much more reliable data on that), it would be consistent that youth drug use is also down, since the two are inextricably linked in our society by virtue of recreational drug use being illegal.
Posted by: David R. Remer at December 22, 2004 11:33 AMDavid, thanks for answering my question. I think its great that JSN is comprehensive in scope.
“There was some misinformation like Marijuana leads to stronger drugs implying the cravings must be satisfied by something stronger. ALso that MJ is addictive.”
I don’t understand why they would feel the need to inject disinformation into a perfectly good idea. MJ should never be classified with harmful or addictive drugs.
“The fact that her parents told her the truth and the school backed it up fairly accurately, so far, has had a lasting effect on her.”
That’s great. She’s very lucky to have the kind of parents who will give her the complete truth, even when other authority figures decide that the knowledge of that truth would be too dangerous a thing to trust her with.
Parent’s who give their kids proper guidance, listen to what they say, talk truthfully about the realities of life, and who trust them to use their brains regarding the choices they make, will generally end up with a pretty great kid, don’t you think?
My sisters and I feel very thankful that we had the kind of parents who disliked the idea of anyone attempting to withold knowledge from us, or narrow our choices - they used to buy us every single book that the school system decided should be banned - and then after we’d read them, they’d ask us what we’d learned and what we thought of them.
I honestly feel like I got as much out of reading those particular books and discussing them, as I did from my teachers in school - and the whole underlying idea of my parents questioning authority was obviously not lost on me, because I’m still doing plenty of that!
“She went through sex ed too, but, her sex ed class last year (13) was fairly objective, a product of our county school system which so far has been fairly progressive,”
You may want to keep an eye on what they are teaching anyway - they may not be discussing certain things with her at that age, or perhaps they have no intention of giving out certain info at all. I say this because I’ve heard that venereal disease among teens is now running rampant - with many of the kids not even realizing they have it. They think its come back in a big way because a while back teachers stopped focusing on it, thinking that it was a problem of the past, rather than of the present.
Sadly, things aren’t as progressive where my niece (15) in North Carolina goes to school. She’s getting the kind of sex-ed that has been in the news recently - namely, half-assed abstinence advice and outright lies. My sister has had to take on the subject at home so she’ll actually understand something about it.
Posted by: Adrienne at December 22, 2004 04:28 PMGreg, I also agree with everything you’ve said, except for one thing:
“Stating that drugs destroy society is simplistic”
Heroin, Crack and Crystal Meth really do have a way of destroying the people who use them and the places where they live.
Posted by: Adrienne at December 22, 2004 04:36 PMThanks for the kind words everyone!
AP- I think one of the most interesting aspects of the Supreme Court’s opinion will be the split. I would not be surprized to see justices like Thomas ruling for Raich, and I will be SHOCKED if the most liberal justices like Ginsburg and Stevens rule for her. As I said in my article, this ruling will say a lot about every justices on the court, and I will do a follow up article when the actual decision comes out.
Posted by: Misha Tseytlin at December 23, 2004 12:06 AMI bet she voted for Bush because you obviously either had to be in a religious fevor or heavily sedated to vote for him.
Who cares about Marijuana regulation really? We should be more concerned with regulating stupidity because there seems to be an endless supply of that in the recent years based on the decisions of our current administration.
Posted by: LLBBL at December 28, 2004 07:17 PMI have no disagreement that drugs can be destructive. But the sad truth is that the drug wars (i.e. war on drugs,DEA, and the criminalization of drug use )have been far more destructive. Drugs will always effect people in society. The Key is Education, and medical treatment, not creating a new class of criminals. It’s the Puritanical, Prohibitonist, irrational approach to dealing with the issue that makes it multitudes worse.
In Texas,I find it almost humorous that the legislature is now considering some decriminalization of marijuana since they can’t afford the warehousing of so many “criminals”
Guess they’ve found new pork to spend.
I’ll sign on to the comments, Greg. Well said.
Posted by: David R. Remer at January 2, 2005 10:40 PM
