Originally published in the San Antonio Express-News, December 5, 2004
by Susan Ives
On Monday the Supreme Court heard arguments about the use of marijuana for medicinal purposes.
The arguments, oddly enough, aren’t about whether smoking pot is a legitimate and effective way to relieve chronic pain. They’re about interstate commerce.
The lawsuit against U.S. Attorney General John Ashcroft was brought in 2002 by Angel Raich, who has an inoperable brain tumor, and Diane Monson, who suffers from chronic back pain. After running out of more traditional options, their doctors recommended marijuana.
California is one of 11 states that have legalized the medical use of marijuana. The others are Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington.
Monson grows her own in her back yard. Two of Raich’s caregivers grow the marijuana and provide it to her free of charge. Even though no money changes hands and the drug does not cross state lines, the government is arguing that it has the power to regulate it under the commerce clause of the Constitution.
You’ll remember from high school civics class that any power that isn’t specifically reserved for the federal government resides with the states. There isn’t any mention of marijuana in the Constitution (you didn’t really think there was, did you?), but it does talk about commerce.
Article I, Section 8, Clause 3 of the Constitution says, “Congress shall have power to … regulate commerce with foreign nations, and among the several states.”
A broad interpretation of this clause started in 1942, with Wickard v. Filburn.
Filburn was an Ohio farmer. Under the agricultural allotments that were imposed to protect prices in the face of a wheat surplus, Filburn was allotted 11.1 acres of wheat. He sowed 23, just like he always had.
Sure, he’d sell 11.1 acres of it, but the extra was for his own use: He’d feed some to his cattle and chickens, grind enough into flour for his wife to bake into bread and cakes and save a bit as seed for next year’s planting.
He was fined $117.11 for the excess wheat and, by gum and by golly, Farmer Filburn took his case right on up the Supreme Court of the United States.
The opinion in Filburn was written by Justice Robert Jackson, best known for the year he took off from the court to serve as the American chief of counsel prosecuting the principal Nazi leaders before the International Military Tribunal at Nuremberg.
Jackson wrote that even though Filburn wasn’t directly engaged in interstate commerce, his 230 bushels of wheat for home use had an indirect effect on commerce — if he didn’t grow it he would have had to buy it, maybe from Illinois — so the federal government had the right to regulate it.
This tortured reasoning has been used for a host of good liberal causes, from workers’ occupational health and safety to the protection of endangered species.
But now it’s being used by a Republican administration to suppress dope. Weed. Reefer. Mary Jane. This conservative administration, whose ideological inclination would be to say yes to states’ rights and no to marijuana, is being forced to choose between the two positions.
When President Bush says that his Supreme Court nominees would be strict constructionists, Wickard v. Filburn and its offspring are exactly the kinds of decisions he wants expunged from the case law. Now, Ashcroft is trampling over states’ rights to take a stand for drug enforcement.
It’s understandable that the Justice Department would be worried that legalization of marijuana for medical use would make it harder to regulate its street use. But there is another way to handle this in lieu of sending DEA agents into a sick woman’s back yard to stomp all over her six puny cannabis seedlings.
In 2001, Canada implemented what it calls Marihuana Medical Access Regulations, which define the conditions under which a patient can be prescribed marijuana, issues government licenses to grow it, distributes it through authorized outlets and conducts research to evaluate its medical efficacy.
That makes more sense than a patchwork of state laws that allow physicians to prescribe it and patients to smoke it, yet provides no legal outlets to distribute it.