Cannabis and The Constitution

By Nick Cheolas
Source: Michigan Review

California resident Angel Raich had tried dozens of prescription drugs, but could find nothing to control the pain resulting from her brain tumors. Frustrated, Raich turned to marijuana, legalized by the passage of California's 1996 Compassionate Use Act allowing medicinal marijuana use.


In 2002, however, federal agents raided the cannabis gardens of Raich and another sick woman, Diane Monson, claiming the possession and manufacture of marijuana violated the federal Controlled Substances Act.

The main question the courts have to decide regarding this case is, if the constitutional “Commerce Clause,” which gives congress the power “to regulate commerce with foreign nations, and among the several states…” can be used in this case to prevent the possession and manufacture of marijuana.

Raich has already won the first battle in the Ninth Circuit Court based in San Francisco. The court believed that the Controlled Substance Act, in conjunction with the Commerce Clause, was designed to halt drug trafficking. Accordingly, in late 2003, the court ruled “the appellants' class of activities - the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician - is, in fact, different in kind from drug trafficking” and “ the CSA is an unconstitutional exercise of Congress' Commerce Clause authority.”

There are larger issues at stake in this case, however. Also being debated is that a federal law can trump a state law or act passed by the voters of a certain state. Initially, the Commerce Clause severely limited the powers of the federal government to regulating international and interstate trade. On top of this, the 10th amendment delegating power to the states was used to block federal laws that conflicted with state laws (hence the reason a constitutional amendment was needed to implement prohibition).

Over time, however, the Commerce Clause has been greatly expanded to encompass almost every transaction made in the United States. The advent of the telephone, and more recently, the internet, has led to an increased classification of commerce types as “interstate.”

The stakes are high for both sides. Medicinal marijuana laws in eleven states could be jeopardized, while state laws in general could be jeopardized if they conflict with federal regulations.

A loss for the federal government, on the other hand, could hinder federal oversight across the board. Along with illegal drug trafficking, the federal regulation of state industries and the environment may be hindered as well.

The Bush administration has used the Controlled Substances Act before in an attempt to nullify state laws. For example, in 2002, Attorney General John Ashcroft attacked Oregon's Death with Dignity Act – an act passed by voters allowing doctors to prescribe lethal pills to the terminally ill. Like the marijuana case, a US Circuit Court upheld Oregon's law, and Ashcroft appealed to the Supreme Court, where the case currently waits.

The ruling could have a profound impact in cities such as Ann Arbor – a historically liberal enclave which hosts the annual protestation of the War on Drugs known as “Hash Bash.” The city, which decriminalized marijuana in 1974, recently passed a measure legalizing marijuana for medicinal purposes.

Ann Arbor's situation also raises an ironic nuance of marijuana debate. While liberals are historically more accepting of lenient marijuana laws, conservatives generally support the right of states to enforce their own laws within their own borders without federal interference – a central issue at play in this case. These complexities make the ruling extremely hard to predict.

Although the ruling will not be handed down until June, several justices have already voiced some thoughts on the case. Judges like Sandra Day O'Connor and Ruth Bader Ginsburg seem to side with Raich, noting that the growth of marijuana for strictly personal, medicinal use does not constitute “interstate commerce,” and therefore should not be regulated by the federal government.

Those who have voiced concerns, including Justices Stephen Breyer and David Souter, seem to fear recreational marijuana users will attempt to hide behind the medicinal laws, creating mass confusion, and that the lack of prosecution will encourage illegal marijuana use among these recreational users.

Unfortunately, a victory for the federal government will likely have the most profound impact on those who benefit the most from medicinal marijuana. While the Bush administration has seemingly decided that marijuana has no place in the field of medicine, they hold their beliefs in contrast to the nearly 100,000 Californians who use the drug to control pain. A “law-abiding citizen” – as Angel Raich's attorney has described his client – is more likely to abide by the Supreme Court's ruling than “recreational” marijuana users.

In this age of global terrorism, the federal government can certainly find better things to do with its time and resources than raid the marijuana gardens of cancer patients. In a case that could deliver a serious blow to the concept of “states rights,” the Supreme Court should restrain the power of a regnant executive branch.

Note: The Michigan Review is the independent, student-run journal of conservative and libertarian opinion at the University of Michigan. Source: Michigan Review (MI)
Author: Nick Cheolas
Published: Volume XXI - Issue 6
Copyright: 2004 Michigan Review, Inc.
Contact: mrev@umich.edu
Website: http://www.michiganreview.com/