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June 6, 2005
Victory over Marijuana

In a win for the progressive side the Supreme Court Rules Against Pot for Sick People:

Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, the Supreme Court ruled Monday, concluding that state laws don’t protect users from a federal ban on the drug.

The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug’s use to treat various illnesses.

In my view pot should be legal, but regulated, about the same way alcohol is:

  • there should be an minimum age for buying and consuming
  • one controlled qualities with a maximum of THC concentration should be allowed and
  • driving etc. should not be allowed under pot influence.

But then, why is this ruling a win for the progressive side?

The judges were simply not asked to rule on the legality of pot. The question put to court was on the superiority of federal legislation, in this case the Controlled Substances Act, above state laws.

And in this, their decision was a right. The constitution’s Commerce Clause empowers the U.S. Congress:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The interpretation of the constitution in this point is crucial. 1935-37 the Supreme Court struck down several of the Roosevelt’s "New Deal" measures on the grounds that the federal instances had no power over state regulations. Only after Roosevelt came back with a landslide voters mandate 1936, he managed to put enough pressure on the court to change their opinion. Since then many progressive federal legislation overruling conservative state laws have been based on a wide legal interpretation of the commerce clause, even if they had little to do with interstate commerce.

Without this wide interpretation, the U.S. would be a very lose confederation of small kingdoms, some with social security and some without.

The court confirmed the modern interpretation today in a 6 to 3 decision. Voting against this were Sandra Day O’Connor, William H. Rehnquist and Clarence Thomas. Any judge Bush will nominate for future supreme court positions will vote with those three and against the modern commerce clause interpretation.

So for now, marijuana stays prohibited under federal law, no matter what state laws say. This may be sad for some folks, but with this ruling the Civil Rights Act and other important federal laws were upheld today too.

Posted by b on June 6, 2005 at 17:35 UTC | Permalink
Comments

You can thank the “Big Pharma” lobbies. Bush corps, and the war on “some drugs” They don’t want kids on drugs? Right…

Posted by: Uncle $cam | Jun 6 2005 18:12 utc | 1

“Newsweek D.C. media manager to become PR VP for White House anti-drug campaign”
Can you say “payoff”? I knew you could!

Posted by: Uncle $cam | Jun 6 2005 18:42 utc | 2

Logical argument but it assumes a fair government. With Bush and Company in power (and no sign of leaving anytime soon, even if they were asked to), most states are more progressive than the Feds.

Posted by: biklett | Jun 6 2005 22:25 utc | 3

It isn’t what drugs you are addicted to that they care about, it’s whose.
Todd Snider

Posted by: lonesomeG | Jun 7 2005 2:52 utc | 4

as more folks flock north.

Posted by: lenin’s ghost | Jun 7 2005 4:54 utc | 5

they can pull my tar ridden pipe from my…opps thought this was the NMA

Posted by: onzaga | Jun 7 2005 8:42 utc | 6

The coming judges: Reject Justice Brown

Now, with Republicans in control of the presidency and the Senate, President Bush has nominated a judge to the U.S. Court of Appeals for the D.C. Circuit who has been more open about her enthusiasm for judicial adventurism than any nominee of either party in a long time. But Janice Rogers Brown’s activism comes from the right, not the left; the rights she would write into the Constitution are economic, not social. Suddenly, all but a few conservatives seem to have lost their qualms about judicial activism. Justice Brown, who serves on the California Supreme Court, will get her vote as early as tomorrow. No senator who votes for her will have standing any longer to complain about legislating from the bench.
Justice Brown, in speeches, has openly embraced the “Lochner” era of Supreme Court jurisprudence. During this period a century ago, the court struck down worker protection laws that, the justices held, violated a right to free contract they found in the Constitution’s due process protections. There exist few areas of greater agreement in the study of constitutional law than the disrepute of the “Lochner” era, whose very name — taken from the 1905 case of Lochner v. New York — has become a code word for judicial overreaching. Justice Brown, however, has dismissed the famed dissent in Lochner by Justice Oliver Wendell Holmes, saying it “annoyed her” and was “simply wrong.” And she has celebrated the possibility of a revival of “what might be called Lochnerism-lite” using a different provision of the Constitution — the prohibition against governmental “takings” of private property without just compensation.
…

Posted by: b | Jun 7 2005 8:57 utc | 7

WaPo Editorial Not About Pot

But the true importance of [the case] has nothing to do with drugs; it relates rather to the balance of power between the federal government and the states. The government’s crusade against medical marijuana is a misguided use of anti-drug resources; that doesn’t mean it’s unconstitutional. A Supreme Court decision disallowing federal authority in this area would have been a disaster in areas ranging from civil rights enforcement to environmental protection.
The Constitution’s commerce clause, which provided the foundation for the court’s ruling in this case, is the foundation of the modern regulatory state, underpinning since the New Deal huge swaths of federal law: worker protections, just about all federal environmental law, laws prohibiting racial discrimination in private-sector employment. Over the past decade, however, the court has tacked away from its most expansive vision of national power, emphasizing that the commerce power is not unlimited. The court said, for example, that Congress can’t use the clause to legislate against sexual assaults or to regulate gun possession near schools. That made sense; without some outer bound of the commerce power, Congress would have authority over anything. But the court’s recent reconsideration of the commerce clause carried dangers, too. Limit the legislature too much and Congress lacks the power to run a modern country whose national policy is necessarily more ambitious than it was in the 18th century.

Posted by: b | Jun 8 2005 7:14 utc | 8

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