The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Friday, June 24, 2005
Supreme Court "medical marijuana" decision about politics, not pot.

Not only do I blog way too sporadically, I'm way behind the news curve. But I have been meaning to comment on the Supreme Court's decision in Gonzales v. Raich, upholding the federal government's power to regulate the intrastate use of "medical marijuana" pursuant to the Constitution's commerce clause.

People tend to perceive Supreme Court decisions politically, judging them in light of the result they produce. (They may be excused in this, because since at least the 1960s, the Court's jurisprudence has in fact become more results-directed, seeming at times to begin with the policy result in mind and twisting and turning to draw some connection between the Constitution and the result, as in the infamous "penumbras and emanations" invented to discover a "right to privacy" that does not actually appear in the Constitution's text.) So naturally, Gonzales v. Raich is being interpreted by the general public as an expression of the Court's hostility to marijuana generally.

Ultimately, though, Gonzales v. Raich was not a decision about marijuana. Justices Rehnquist, O'Connor, and Thomas -- three of the most conservative members of the Supreme Court -- dissented from the Raich majority because, as Justice Thomas eloquently put it, if a California resident growing medical marijuana for her own use in her backyard is considered subject to regulation as "interstate commerce," everything is, and the Constitution's federalist system of separation of powers between state and federal government goes up in smoke. [No pun intended.]

The liberal bloc on the Court, on the other hand, is determined to nip in the bud [OK, fine -- pun intended] any idea that federal government's Constitutional power to "regulate interstate commerce" doesn't mean it can regulate anything it wants. The principle of federalism, to them, has uneasy associations with "state's rights," which they in turn associate with John C. Calhoun, Jim Crow, and worse. After all (goes their thinking), Texas and Utah are states, and if we don't keep them on a short leash, heaven only knows what unenlightened redstatery they'll try to pull.

To preserve the federal government's dominance of the states in every sphere, and to keep the Constitution's pesky federalist principles hidden under the rug, liberal jurists have no problem at all throwing a few sick people under the train. Power trumps compassion every time.

That said, I've always been suspicious of the argument for "medical marijuana." The evidence that smoking marijuana as a palliative for pain, glaucoma, chemotherapy-induced nausea, and so forth is more effective than other, legal drugs appears to be anecdotal at best. I often suspect the push to legalize "medical marijuana" is more of a disguised effort to destigmatize marijuana generally, dressing the cause up with a few sympathetic sick people. If that is the case, I'm not impressed. It strikes me as similar to potheads extolling the manifold industrial uses of hemp. Uh-huh -- right. It's all about ropemaking. Deceptive argumentation bores me.


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