Comments on: ...to the highest court in the land...

...to the highest court in the land...

Dantien — Wed, 30 Jun 2004 09:34:19 -0800

is finally going to be addressed by the Supreme Court. What this will come down to is federal law vs. state law. Who has the right to make the final decision?

By: monju_bosatsu

monju_bosatsu — Wed, 30 Jun 2004 09:46:08 -0800

Much more information--including the briefs and opinions--here.

By: fenriq

fenriq — Wed, 30 Jun 2004 09:50:11 -0800

I think its a combination of both. Its a federal law but its up to the local and state police agencies to enforce. Out here, its just not a major issue to bust dope smokers when there's lots of other crime to deal with that incurs more harm on the populance. For my own thinking, making medical marijuana illegal is the same as criminalizing the use of penicillin or some other medicine. Sick people need access to whatever is going to help them get better. And then there's the other side of the road where lots of people are seeing the legalization of medical marijuana as a springboard to legalizing dope for the rest of the country as well. Something I don't think would result in mass hysteria. Which is worse for you? Two packs of cigarettes a day or smoking two joints?

By: clevershark

clevershark — Wed, 30 Jun 2004 09:52:36 -0800

Personally I can't accept the notion of a doctor being overruled by a politician when it comes to prescribing medicine. It's pretty much that simple.

By: monju_bosatsu

monju_bosatsu — Wed, 30 Jun 2004 09:58:56 -0800

The key issue is this: Congress passed the Controlled Substances Act based on its authority under the Commerce Clause of the Constitution. Although the Supreme court ruled recently that there is no medical necessity exception to the Controlled Substances Act’s prohibitions on manufacturing and distributing marijuana, it expressly reserved the issue of the scope of the Commerce Clause in this context. See United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494 n.7 (2001) (“Nor are we passing today on a constitutional question, such as whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause.”). In other words, is the Commerce Clause broad enough to reach purely local and only marginally economic activity? The answer for most of the twentieth century had been yes, but the relatively "conservative" court has been increasingly questioning that broad interpretation. See, e.g., United States v. Lopez, 514 US 549 (1995) Read more background on the powers of Congress, including the Commerce Clause, or peruse this annotated version of the commerce clause, with links to original materials and cases.

By: Mayor Curley

Mayor Curley — Wed, 30 Jun 2004 10:00:17 -0800

Who has the right to make the final decision? Isn't the Bible absolutely clear about that?

By: fenriq

fenriq — Wed, 30 Jun 2004 10:04:52 -0800

clevershark, much more succinctly said than what I said and hits the nail squarely. Mayor Curley, please tell me your joking. But if not then let me be the first to mention that I don't subscribe to the Bible, I don't live my life in accordance with it because I'm an athiest.

By: fenriq

fenriq — Wed, 30 Jun 2004 10:05:25 -0800

Damnit, that should be "you are joking". Dang!

By: Mark Doner

Mark Doner — Wed, 30 Jun 2004 10:09:00 -0800

I'll never understand how growing a plant in your garden could be 'interstate commerce'.

By: uncleozzy

uncleozzy — Wed, 30 Jun 2004 10:19:12 -0800

I'll never understand how growing a plant in your garden could be 'interstate commerce'. Everyone knows those filthy, un-American hippies are always taking their dope across state lines to go to Grateful Dead concerts.

By: PrinceValium

PrinceValium — Wed, 30 Jun 2004 10:19:30 -0800

I'll never understand how growing a plant in your garden could be 'interstate commerce'. Arrrr, matey, Wickard v. Filburn be for ye!

By: ROU_Xenophobe

ROU_Xenophobe — Wed, 30 Jun 2004 10:26:06 -0800

You don't necessarily want the dope-smokers to win this one. If they win, that might call into question the constitutionality of the Civil Rights Act, which is also based on a very broad interpretation of the commerce clause. That is, the law that says that a local restaurant that doesn't engage in interstate commerce can't refuse to serve black folk is based on their restaurant affecting interstate commerce indirectly. I wouldn't be surprised if most of the court ends up basing their decision more on how they feel about laws like the CRA than about how they feel about a little weed.

By: reverendX

reverendX — Wed, 30 Jun 2004 11:02:40 -0800

I thought the CRA was more based on the 14th Amendment's grant of power.

By: Mark Doner

Mark Doner — Wed, 30 Jun 2004 11:07:57 -0800

While I'm all for civil rights, I can't see that a local restaurant is interstate commerce, either. But if they're going to interpret words as meaning things they don't, why don't they just abadon the pretense and take it all case by case. In other words, rather than drawing the 'line' on interstate commerce in the wrong place, they could just draw a wiggly line to grab the stuff they want. It makes about as much sense.

By: uncleozzy

uncleozzy — Wed, 30 Jun 2004 11:14:09 -0800

I have been trying to think of something clever or coherent to add here but, being a see-both-sides type of non-law-talking-guy, I'm unable to come up with an acceptable argument for states' rights in this case that doesn't amend or destroy the Controlled Substances Act (which is another kettle of fish entirely). The Controlled Substances Act makes explicit note that intrastate traffic in drugs must also be controlled, doing an end-run around the Commerce Clause. To a layman, it seems that the Controlled Substances Act would be considerably weakened by Ashcroft's defeat in this case; it would, essentially, destroy the provision in the CSA that allows for the control of intrastate traffic and turn that determination over to the state. Making a provision solely for medical purposes, while an option, seems somehow unsatisfactory.

By: monju_bosatsu

monju_bosatsu — Wed, 30 Jun 2004 11:17:16 -0800

ReverendX: Different pieces of the Civil Rights Act are predicated on different grants of congressional authority. Title II, governing discrimination in public accomodations and considered by the Supreme Court in Heart of Atlanta Motel v. United States, is based on the Commerce Clause. So too is Title VII, governing employment discrimination. Title III, on the other hand, governing desegregation of public facilities, is based on the grant of congressional authority in the Fourteenth Amendment. You can read the text of the Civil Rights Act here.

By: Mayor Curley

Mayor Curley — Wed, 30 Jun 2004 11:26:09 -0800

Mayor Curley, please tell me you're joking. Why would I joke about something as serious as G-d's word?

By: tsarfan

tsarfan — Wed, 30 Jun 2004 11:32:00 -0800

I think the Mayor may have been re(e)fering to this:

Genesis 1:12 And the earth brought forth grass, and herb yielding seed after his kind, and the tree yielding fruit, whose seed was in itself, after his kind: and God saw that it was good.

By: fenriq

fenriq — Wed, 30 Jun 2004 12:10:34 -0800

Mayor Curley, because you're trying to use theology to write laws and that is just not legal in this country (at least not openly). Besides, you're trying to force a huge number of people (myself included) under God's word when the Bible wasn't written by God but by men. Its fine for you to follow God's word but even considering forcing me to kow tow to your religious beliefs is an insult of the highest order. It would be the same thing as amending the Pledge of Allegiance to say "One Nation under Allah, with liberty and justice for all." Its just as wrong to say God as it is to say Allah because I am not "under God", I am my own person and I make my decisions for myself without regard to an ancient book of stories.

By: hackly_fracture

hackly_fracture — Wed, 30 Jun 2004 12:39:08 -0800

(fenriq, dude, seriously, he's joking)

By: Pretty_Generic

Pretty_Generic — Wed, 30 Jun 2004 12:39:32 -0800

He's joking.

By: fenriq

fenriq — Wed, 30 Jun 2004 12:58:29 -0800

That's why I asked, doesn't seem to be joking though.

By: waldo

waldo — Wed, 30 Jun 2004 13:29:20 -0800

It's ironic that the feds have this power (ostensibly) under the interpretation of the commerce clause provided by the switch-in-time-that-saved-nine court under Roosevelt, to pass the New Deal. (Ironic because I'm from a family of New Deal Democrats who also don't want the feds' grubby hands on medical marijuana laws.) I wonder if conservatives understand that, in order to be consistent with their opposition to the New Deal, they need to support the states on this one?

By: cohappy

cohappy — Wed, 30 Jun 2004 13:42:18 -0800

As tsarfan was kind enough to point out, Mayor Curley was just reminding us that God likes the herb.

By: Satapher

Satapher — Wed, 30 Jun 2004 14:15:01 -0800

dude

By: fold_and_mutilate

fold_and_mutilate — Wed, 30 Jun 2004 14:36:20 -0800

I think clevershark hits the mark above. Marijuana and its derivatives are extremely useful in some patients, and decisions about use should be between a doctor and his/her patients. As tsarfan was kind enough to point out, Mayor Curley was just reminding us that God likes the herb. Sheesh. I thought The Big Guy hated marijuana, rock music, long hair, and sex outside the bonds of marriage. Thanks Metafilter. Now I'm all confused.

By: Satapher

Satapher — Wed, 30 Jun 2004 14:39:25 -0800

God is the sun. He loves everyone.

By: beth

beth — Wed, 30 Jun 2004 14:40:54 -0800

Damnit, that should be "you are joking". Dang! And it should also be "atheist". Unless of course you really wanted to tell us that you were the most athi of all.

By: trharlan

trharlan — Wed, 30 Jun 2004 15:03:40 -0800

waldo-- your question presupposes a consistent philosophy about the interpretation of the constitution. This has not been a hallmark of Conservatism since the time of Barry Goldwater.

By: fenriq

fenriq — Wed, 30 Jun 2004 15:31:46 -0800

beth, thanks. I'm not really all that "athi" anymore, the medicine and cream took care of it nicely!

By: MattD

MattD — Thu, 01 Jul 2004 05:55:16 -0800

Yeah, the civil liberties community really doesn't care for states' rights in the Commerce Clause context ... which explains its pretty low profile in the medical marijuana cases (and in the assisted-dying cases, too).

By: Dillonlikescookies

Dillonlikescookies — Thu, 01 Jul 2004 18:41:43 -0800

"...If they win, that might call into question the constitutionality of the Civil Rights Act... ...That is, the law that says that a local restaurant that doesn't engage in interstate commerce can't refuse to serve black folk is based on their restaurant affecting interstate commerce indirectly..." It would be deeply ironic if these laws against discrimination were responsible for the continued illegality of medical marijuana, considering the part racism played in making the plant illegal in the first place.

By: five fresh fish

five fresh fish — Sat, 03 Jul 2004 19:44:12 -0800

If they win, that might call into question the constitutionality of the Civil Rights Act, which is also based on a very broad interpretation of the commerce clause. I suggest that: (A) The CRA is no longer necessary: no one's going to get away with discriminating based on race any more. Imagine the shit that would fly if a restaurant tried to ban blacks! (B) Worst comes to worst, the CRA can be replaced by other anti-discrimination laws.