I’ve got mixed feelings on this whole medical marijuana issue. I’ve had friends with cancer who swear by the drug as the only thing (legal or otherwise) that effectively treats the nausea and pain associated with treatment while restoring a lost appetite. For that reason alone, I fully support the use of medical marijuana, but I don’t like the way this issue has been handled by either side of the debate.
On the anti- side, the “war on drugs” crowd has been too reliant on the slippery slope arguments about marijuana being a “gateway drug” and fearmongering about healthy hippies getting fake prescriptions. The ideological rigidity against the idea that there could ever be a positive use for pot seems a bit hypocritical given that these same folks aren’t equally up in arms about the abuse of Oxycontin or Xanax.
That said, I’m not a big fan of the pro- side’s method of trying to make an end run around FDA regulation and federal law. I can understand why advocates would try to find ways around the racist, elitist, hypocritical, and mostly evil “war” on drugs. Even worse, the FDA has been notorious in their unwillingness to even consider approving marijuana for pharmaceutical use[1]. That said, going the state’s rights route towards legalization was pretty wrongheaded at the outset. Even when these laws originally passed, there was always a feeling of “civil disobedience” in the air. [2] The inevitable conflict with federal law was a ticking clock that hung over every “cannabis club” in the country.
So it was no surprise that the Supreme Court weighed in on the side of the feds yesterday in Gonzales vs. Raich. What was shocking to me though, is that it was decided on the grounds of the Constitution’s interstate commerce clause. The dissenting opinion, as Salon points out, leaves us with some strange bedfellows :
The section that gives Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” now stretches to include, according to Clarence Thomas’ dissent, “virtually anything.” Antonin Scalia, voting with the majority, clarified: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
In Raich, the two women were using California seeds and plants were following California law. No money changed hands. As Thomas writes, “By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.” So what can’t the federal government regulate?
I’ll leave it to others to speculate about how horrible this precedent may be, but I do want to take issue with what Salon sees as the potential light at the end of the tunnel :
Fortunately, those liberal slaves of principle in the court’s majority — who compassionately lamented the “respondents’ strong arguments that they will suffer irreparable harm” if deprived of medical marijuana — have some sage advice for the millions of victims of the war on drugs. “Perhaps even more important,” croons Stevens at the end of his opinion, “is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”
That one day could come as early as next week, when Congress is likely to vote on the Hinchey-Rohrabacher amendment, which would prohibit the federal government from spending money to arrest, prosecute or incarcerate patients who use medical marijuana on the advice of their doctors in states where it is legal. Polls have shown upward of 80 percent support for this amendment in past years, so, of course, it loses every year by 100-plus votes. But if the Supreme Court told us nothing else on Monday, it was that if this drug quagmire is ever going to end, it’ll have to be stopped by the ones who started it: members of Congress. Until then, we’ll gradually build our way to a society where half the population is locked in prison and the other half is guarding the prisoners.
Which “drug quagmire” are we talking about now? Like I said before, I think the “war” on drugs is awful, but I thought we were talking about the ways marijuana helps ease the enormous pain and suffering of cancer patients. Yes, the two issues are related, but nobody should be exploiting the sympathy for the terminally ill to piggyback the larger, but tangential, issue of the excessive criminalization of narcotics onto this particular fight.
Furthermore, I can’t think of a worse way to pave the way for medical marijuana than the Hinchey-Rohrabacher amendment as described above. I think doctors should be allowed to prescribe pot to chronically ill patients, but the idea of allowing bad laws to remain on the books while passing additional laws that make it illegal to enforce the existing laws seems like a big, big mistake. Sure, it may provide the necessary results, but the means to that end would probably be a legal mess that could end up confusing the issue even further.
A far more reasonable approach would be for Congress to pass an amendment to the Controlled Substances Act that would move marijuana from its Schedule I status to Schedule II. While getting Congress to relax drug laws may seem like a pipe dream, the real world implications would be to simply move pot from the class that includes LSD and heroin to the one that includes cocaine, morphine, and crystal meth. While this probably wouldn’t do much to satisfy the “Legalize It!” crowd, it should give doctors the leeway to prescribe the drug for their patients, open the door to FDA approval, and subject it to more than enough regulations to keep the drug out of the hands of recreational users.[3]
1 : Are their hands tied by the Controlled Substances Act or are they just too busy rubber stamping deadly drugs from big pharma to test the safety of something that people have been ingesting for thousands of years?
2 : Just like with S.F. mayor Gavin Newsom’s orders to allow gay marriage, we all knew that the “fun” couldn’t last forever.
3 : That is, assuming you think drug laws work. I don’t, for the most part, but the opponents of medical marijuana obviously do.