Mr. Rogers for President. Part VI: Authority

So I was pretty much convinced that the medical marijuana debate was much more than just a smokescreen, that there really were lives at stake.

Is it really conscionable to sacrifice these human beings at the altar of "sending the right message?"

Particularly considering that we don't have any problem at all allowing doctors to prescribe morphine and cocaine. It's not legal to take the drugs as a hobby, but after surgery, they give you the stuff so that you can get high instead of being in pain. Usually, I get by with ibuprophen--I think the only time when I actually took the powerful meds was after hemorrhaging when I gave birth to the twins. I'll take an awful lot of pain before I choose to ingest something that will mess with my head.

But whereas getting high is a legitimate method of pain relief for wisdom tooth patients, doctors cannot prescribe non-psychoactive doses of marijuana to prevent AIDS and cancer patients from dying of malnutrition?

There is something very wrong about this picture.

Still, I was pretty sure that states like California were out of line in passing laws that defied the authority of the federal government.

But then I listened to what Ron Paul had to say about it. And Ron Paul said that as a physician he does believe that marijuana can be medically useful in certain situations... but that it's really rather beside the point. The Constitution is very clear that such matters should be left up to the states. California should be able to allow it, Utah and Texas should be able to prohibit it, and as long as nothing crosses a state border, it just isn't any of the federal government's business at all.

I did a double take. That's definitely not the way things work in this country.

So I pulled my copy of the Constitution down from the shelf. I spent a good bit of time poring over it, searching for something that would give the federal government authority over drug laws, but it just wasn't there. The federal government has authority over currency, interstate and international commerce, military forces, post offices and roads, patents and copyrights. But the Constitution doesn't say a single thing about drug law, and the 10th amendment makes it clear that the federal government is not allowed to do anything not mentioned in the Constitution.

And then I looked at the Supreme Court majority and dissenting opinions in the 2001 case in which they decided, 6 to 3, that federal law trumped state law when it came to drugs.

O'Connor, Renquist, and Thomas dissented, saying that since backyard cannabis cultivation for personal medicinal use was neither interstate nor commercial, it could not possibly fall under the interstate commerce clause. He also gave an inspiring and eloquent argument for the importance of the federalist system, where the states serve as laboratories of justice. It's a good read.

But the majority opinion, written by Justice Stevens, states that the authority to regulate interstate commerce extends to purely non-commercial activities which have an impact on interstate markets. Stevens cited a case in which the Court decided that the federal government had the authority to regulate wheat grown for personal consumption. Apparently "regulating commerce between the several states" means that you can place controls on production in order to manipulate prices. So the government wanted to raise the price of wheat, and imposed production caps on the farmers. One farmer, concerned about the shortages that would likely arise, planted some extra for his own family's consumption, in addition to the crops for sale. The Supreme Court ruled that the federal government did indeed have jurisdiction over the non-commercial wheat crops, because they would have an impact (however trivial) on the interstate wheat market.

In other words, the authority to regulate interstate commerce brings with it the power to regulate any activities which might enable you to refrain from participation in interstate commerce.

And it is through this precedent that the Court ruled that federal drug laws trump state drug laws. Since there is a large and lucrative interstate marijuana market, and marijuana cultivation for private use would have an impact on that market, the commerce clause applies in this situation.

In other words, the Suprem Court decided that patients cannot be allowed to grow marijuana because that could impinge on profits in the illegal drug trade.

No, I'm not joking. Read it for yourself.


Stephanie S said...

The way I've had the pain meds explained to me, though, it's not that you get high when you're actually in that much pain. It's when there's not enough pain that you get high (and can get addicted).
I'm not saying that it's different or not different for marijuana...I don't know. I was just told that (and experienced it) in the case of Vicodin and similar drugs.

Elena said...

Just to clarify, I agree that there is a very big distinction between legitimate medical use and abuse when it comes to cocaine. And you're right, vicodin woozy is different from actually being high. I just meant that while the doses of Vicodin necessary to control pain do have psychological effects, whereas the doses of marijuana necessary to control nausea do not. I was sloppy with my words... sorry.

My point is simply that if we can distinguish between appropriate an inappropriate use of cocaine--and it's clear that we can!--surely we can do the same for marijuana.