Pot or Jail
March 14, 2007 1:33 PM   Subscribe

RAICH V GONZALES (.pdf) : The Ninth Circuit hold that even if a physician attests that medicinal marijuana (within a State that allows such use) is what keeps a patient alive the patient can be Federally prosecuted on drug charges. (news story)
posted by edgeways (72 comments total)
 
The appeals court said the United States has not yet reached the point where "the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'"
posted by edgeways at 1:35 PM on March 14, 2007


Pot or Jail or Canada.
posted by chunking express at 1:39 PM on March 14, 2007


in the mean time, over here in the Netherlands, where the government is contemplating a total tobacco smoking prohibition in bars, restaurants, etc, (based on "your employer needs to be able to give you a smoke-free workplace, and if you're a barkeeper or waiter...") there's serious talk about an exception to that ban to be written into the law for coffee shops.

Talk about different views...

for the non-dutch who don't know: a "coffee shop" doesn't serve coffee. It does serve marijuana.
posted by DreamerFi at 1:44 PM on March 14, 2007


Consider your mellow harshed.
posted by The Straightener at 1:44 PM on March 14, 2007


wha...?
posted by Grod at 1:49 PM on March 14, 2007


Using that decision as a precedent, couldn't anyone be prosecuted for possessing prescription drugs that are in the controlled substance category? Why the continuing panic about marijuana?
posted by Cranberry at 1:50 PM on March 14, 2007


Pot or Jail or Canada.

Don't you mean ((pot and jail) or canada)?
posted by delmoi at 1:51 PM on March 14, 2007


Using that decision as a precedent, couldn't anyone be prosecuted for possessing prescription drugs that are in the controlled substance category? Why the continuing panic about marijuana?

Anyone without a perscription, which is exactly how things are now...
posted by delmoi at 1:51 PM on March 14, 2007


I'd sure like to know what sort of brain tumor she has. I suspect, given the other things listed [scoliosis], that it's non-threatening. It's sad that people like this are the test cases instead of someone with life-threatening illness.

This verbiage in the statute:
"or any other illness for which marijuana provides relief" just opens the floodgates for anyone with a hunger for pot and routine ailments to clog the courts and doctor's offices with demands for medicinal THC. It's no wonder there's no headway made on useful reform of medicinal marijuana if this is the best they can find for precedents.
posted by docpops at 1:52 PM on March 14, 2007


This is her website.

I am ready to be corrected, but there's something suspicious about a brain tumor that can put someone in a wheelchair from 96-'99, at which point pot has her walking again, but doesn't kill her by 2007. Not to sound harsh, but I have seen a lot of terminal cancer patients that would have had a hell of a better chance at convincing the government and FDA to remediate these restrictions. This person sounds like a crank.
posted by docpops at 1:58 PM on March 14, 2007


I agree with docpops, something about her story threw me off. If we're going to use test cases, at least use one of the millions of people with their heads in their toilet every night because of chemotherapy. Using Raich seems to only seems to solidify in the public's mind that medical marijuana is only applicable to such extreme cases. Then again I know no one who would argue against medical marijuana, especially those who've seen chemotherapy patients. This is more political posturing than it is determining the validity of medical marijuana.
posted by geoff. at 2:10 PM on March 14, 2007


An interesting opinion. I would note, if the 9th Circuit isn't on board, then the position must be way out on the fringes.

I find it very interesting that this was a Dec action. Because as the 9th Circuit correctly noted, it is, in all practicality, effectively impossible to assert an affirmative defense prospectively.

What I find interesting is that the 9th Circut suggests how it wants to rule, but amazingly (and uncharacteristically) shows judicial restraint in ruling on the merits.

But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” For the time being, this issue remains in “the arena of public debate and legislative action.”

This statement makes Baby Jesus the Zombie Founders cry.

Not yet? Either it a fundamental right or it is not. If it isn't now, then it will never be (barring amendment). The Constitution is a written document, designed to protect against changes in beliefs, not some "evolving" "living" document. To that dicta from the 9th Circuit, I can do no better than to cite this:
Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation.
posted by dios at 2:16 PM on March 14, 2007 [1 favorite]


Why are we even worrying about marijuana at all? I don't smoke it myself, but I'm not afraid of the stuff. We treat it like it's nuclear material.
posted by Lady Penelope at 2:16 PM on March 14, 2007 [1 favorite]


**smells something...fishy**.
I'm not sure that his about the reform of MJ laws as it is about one person trying to get around the law. More power to her. I'm betting this is not the way to get the laws repealed. More like some kind of "posturing?"
posted by winks007 at 2:19 PM on March 14, 2007


Upon review: I should have referenced Zombie Framers, not Founders.
posted by dios at 2:19 PM on March 14, 2007


Absurd.

Legalize it. Regulate it. Tax it.
posted by Ynoxas at 2:20 PM on March 14, 2007 [1 favorite]


**smells something...fishy**.
I'm not sure that this about the reform of MJ laws as it is about one person trying to get around the law. More power to her. Im not picking on her per se, I'm merely thinking this is not the way to get the laws repealed. More like some kind of "posturing?"
posted by winks007 at 2:20 PM on March 14, 2007


docpops, geoff- I believe terminally-ill plaintiffs make bad test cases; they tend to die in the middle of the interminable appeals. Consider: this case began in 2003, and was already old news when it was remanded last year by the Supreme Court.
posted by anotherpanacea at 2:22 PM on March 14, 2007 [1 favorite]


stupid, slow connection.
posted by winks007 at 2:22 PM on March 14, 2007


Absurd.

Legalize it. Regulate it. Tax it.
posted by Ynoxas at 4:20 PM CST on March 14


Eh? That's what the legislature is for. Not the Courts. See here.
posted by dios at 2:23 PM on March 14, 2007


Lawmakers change minds on marijuana

SANTA FE — Gov. Bill Richardson worked hard to change minds on a medical marijuana bill he wants to sign into law.

Apparently he didn't change a single one - according to the Democrats who did what he wanted and switched their votes from "no" last week to "yes" on Tuesday.

The five lawmakers who changed all said that calls from and talks with the governor or his staff played no role in their decisions...
posted by taosbat at 2:25 PM on March 14, 2007


Federal Government in breach of social contract, tree of liberty, blood of tyrants, etc.
posted by mullingitover at 2:27 PM on March 14, 2007


The Constitution is a written document, designed to protect against changes in beliefs, not some "evolving" "living" document.

S: (n) amendment (a statement that is added to or revises or improves a proposal or document (a bill or constitution etc.))

I guess repealing the Three-fifths Compromise, undoing Prohibition or giving the right to vote to 18 year-olds after Vietnam fail to count as evidence for an evolving document.
posted by Blazecock Pileon at 2:27 PM on March 14, 2007


This brings up a question I've had for quite some time: why did it take a Constitutional Amendment to outlaw a single molecule (Ethanol, C2H6O), and yet every subsequent controlled substance can be outlawed without one?
posted by mullingitover at 2:36 PM on March 14, 2007


Damn that evolving commerce clause....
posted by anotherpanacea at 2:42 PM on March 14, 2007


docpops, geoff- I believe terminally-ill plaintiffs make bad test cases; they tend to die in the middle of the interminable appeals. Consider: this case began in 2003, and was already old news when it was remanded last year by the Supreme Court.
posted by anotherpanacea at 2:22 PM PST on March 14


Excellent point - but videotaped evidence and testimony would be sooo much better than people like this. Not that I can say for sure, but the average person/patient seeking a pot permit annoys the living shit out of me in less than twenty seconds, so I can't imagine how a jurist feels after several months.
posted by docpops at 2:44 PM on March 14, 2007


Blazecock Pileon, you're being deliberately obtuse. In fact, dios explicitly noted "(barring amendment)" in his objection to "Living Constitutionalism." It is clear that dios is not arguing that the constitution never changes; he is arguing that the constitution does not change via changes in judicial interpretation, societal values, or the like. I don't agree with dios's theory of constitutional interpretation, but it's clear that the existence of amendments does not refute his point.

dios, would you agree that there exist some punishments which were not considered cruel and unusual in 1791, but would be considered cruel and unusual today? If so, do you believe the eighth amendment prohibits such a punishment from being applied today?
posted by DevilsAdvocate at 2:51 PM on March 14, 2007


In the PDF of her doctor's statement is a commentary on her medical conditions [I can't cut and paste], listing, amongst others, TMJ, uterine fibroids, PTSD, etc. The brain tumor is benign, as well.
posted by docpops at 2:55 PM on March 14, 2007


Also multiple chemical sensitivity syndrome and a violent reaction to all pharmaceutical medications. Oy.
posted by docpops at 2:56 PM on March 14, 2007


docpops - took me less than 10 seconds to read your comment and have you annoy the living shit out of me, so I guess you win.

I'll be sure to pass along to my friend with MS how totally insufferable you find her and her problems too.
posted by afflatus at 2:58 PM on March 14, 2007


Federal Government in breach of social contract
posted by mullingitover at 4:27 PM CST on March 14

What's the breach of the social contract? To which social contract are your referring?

Little known fact: if the American people want marijuana to be legalized and elect officials to make it happen, pot will be legal. There is some platonic or constitutional prohibition against it. It just so happens that it is the will of the people that is making it illegal.

Damn that evolving commerce clause....
posted by anotherpanacea at 4:42 PM CST on March 14


I don't know if you are familiar with the debate over the concept of a living constitution vs. clause-bound interpretivism, but let me just not this: the scholarly and jurisprudential dispute with respect to whether the Constitution is a "living document" or not does not have anything to do with the ability of applying the original principles to new facts. It's about the finding of new principles and rights based on changes in society's views. Or to put it another way, applying the First Amendment to the Internet it not an issue of whether there is a Living Constitution or not; in that instance you are applying a principle contained in the document to the facts at hand. The theory of the Living Constitution is that the Constitution changes with time without amendment but based on the judge's reading of society. That the very act which it once prohibited it now permits; and which it once permitted and now forbids; and that the key to that change is unknown and dictated by the judge's understanding of what present realities are. Whole forests have fell in this debate, and I'm not going to rehash the entire thing here. But simple and facile comments about how the law in fact changes is not an issue. It's about the mechanism by which it principles and rights are derived or deprived (see, e.g., the Confrontation clause being deprived to sex offenders by mere judicial fiat based on judge's determinations of societal realities.).
posted by dios at 2:58 PM on March 14, 2007


hey afflatus - if your friend met this lady she'd punch her lights out. People like this are anathema to anyone with a real physical disability. People like this suck the life out of the medical system while your friend waits weeks to get doctor's appointments. People like this are the reason some physicians burn out. She's an empty ghost. Whatever her problems are, medical science doesn't have a name or therapeutic treatment for. I'm sorry you misconstrued my comments. This lady and your friend have as much in common as an astronaut and a muttering hobo wearing a tinfoil helmet.
posted by docpops at 3:02 PM on March 14, 2007


the laws would change if it wre the will of the people? oh. So that is why the Iraq war continues....
note: it is the will of lobby groups that makes or does not make the laws of the land.
posted by Postroad at 3:06 PM on March 14, 2007


docpops: I make no judgements about the person in this lawsuit. I do make judgements about people who characterize "the average person seeking a card" and then go on to offer a medical opinion about the validity of someones complaints without having met the person in question. I'm doubly appalled when that person is a doctor (as you seem to be).

Perhaps you have burned out on your profession and perhaps people seeking medical marijuana cards helped bring that about. I don't know. But thus far you seem to have a remarkable lack of empathy and I would hope that someone in your profession would be more charitable, especially when medical science doesn't have a name or therapeutic treatment for their condition.

Which is what I think this story really boils down to: thus far they haven't been able to really help her except with marijuana. If it does help her, then what's the harm?
posted by afflatus at 3:11 PM on March 14, 2007


the scholarly and jurisprudential dispute with respect to whether the Constitution is a "living document" or not does not have anything to do with the ability of applying the original principles to new facts.

As usual, it's not that simple. For instance, is there a right to privacy? The Constitution certainly doesn't refer to that right specifically, but reasonable people can debate whether or not it infers it.

I believe you need to view the Constitution in the most "liberal" (for lack of a better term) light possible when confronting issues. Err on the side of liberty. Err on accepting freedoms instead of curtailing them.
posted by Benny Andajetz at 3:11 PM on March 14, 2007


afflatus: I have a friend who is a doctor in California (not a GP, so doesn't see much of this) and he relates to me that asking for marijuana is similar to going into the doctor and asking for codeine. I believe this is where docpops is coming from. Most people, who truly have a need, will not come in specifically requesting a drug. Some cases are different (e.g. "I can't sleep and my friends say Ambien works really well"), but medical marijuana should be, if I understand California's law correctly. used for those who have problems in which marijuana isn't the first request.

I also have friends who have medical marijuana cards and they are probably the ones docpops is talking about (20-25, male, perfectly healthy). I think marijuana should be legalized, yadda yadda, yadda but I don't think it should be done via the courts. I think the DEA needs to put marijuana on a different schedule, what they have no is ludicrous. If anything it shouldn't be scheduled at all so doctor's can focus on treating patients instead of figuring who is a fraud or not.
posted by geoff. at 3:20 PM on March 14, 2007


afflatus,

First, I'm sorry your illusions about the medical profession have been horribly rendered. You will be saddened to find out that medical practicioners are extremely fond of many patients, ambivalent about others, and extremely repelled by a very few. This is, I'm sorry to say, a Universal truth as any can be. She has laid bare her life story for us to read. Since I won't be likely to meet her in person, I have gleaned what I can from the voluminous material available to me. The best case her doctor can make is to enumerate a litany of medical conditions that many brave souls tolerate without a hint of need to publicly declare their misery.

I really, really would love to see marijuana brought into the fold of prescribable substances. But just like I would not prescribe an opiate to an addict with knee pain, I would be hesitant to put my professional seal on a prescription for pot for a person who has some readily visible psychological issues.
posted by docpops at 3:25 PM on March 14, 2007


Eh? That's what the legislature is for. Not the Courts.

Well, the courts aren't designed for having a nonsensical interpretation of the Commerce Clause, or ignoring the Ninth Amendment altogether, but they did.
posted by Kwantsar at 3:30 PM on March 14, 2007


Wait a minute. A controversial ruling from the Ninth Circuit which is obviously designed to elicit a strong response from every sector of society? This is a first.
posted by koeselitz at 3:32 PM on March 14, 2007


I believe you need to view the Constitution in the most "liberal" (for lack of a better term) light possible when confronting issues. Err on the side of liberty. Err on accepting freedoms instead of curtailing them.
posted by Benny Andajetz at 5:11 PM CST on March 14


Ahh, the old "liberty maximizing" argument.

I like Scalia's retort this:
The record of history refutes the proposition that the evolving Constitution will invariably enlarge individual rights. The most obvious refutation is the modern Court's limitations on the constitutional protections afforded property. The provision prohibiting the impairment of the obligation of contracts, for example, has been gutted. See Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934). I am sure that We the People agree with that development; we value property rights less than the Founders did. So also, we value the right to bear arms less than the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generations might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may like the abridgment of property rights and like the elimination of the right to bear arms, but let us not pretend these are not reduction of rights.
See also the opinion in Maryland v. Craig wherein the majority decided that in cases involving sexual abuse of a child, the accused was only allowed to watch the testimony of the victim through closed-circuit tv because of fear of the psychological impact upon the child of testifying in front of the accused. As such, the accused did not have the rights guaranteed by the Confrontation clause to confront his accuser when the accuser testifies. There were sex offenses involving children in 1791, so this is not a new thing. The only change is our sensitivity to 'psychic trauma.' We probably like the decision of the Court, but we cannot pretend that the decision did not eliminate a liberty interest protected by the Constitution.
posted by dios at 3:33 PM on March 14, 2007


dios : Little known fact: if the American people want marijuana to be legalized and elect officials to make it happen, pot will be legal. There is some platonic or constitutional prohibition against it. It just so happens that it is the will of the people that is making it illegal.

I asked this in a different thread a while back, but who is still actively against marijuana legalization? I mean apart from law enforcement who has a stake in keeping their operating costs up with arrests, who is it that is still vocally against it?

We hear all these theories about pharmaceutical companies and the like, but I've never seen evidence of them actually working against any kind of legalization or decriminalization. (note: that I haven't seen, doesn't mean it doesn't exist...)

Is it just that, at this point the issue has so much momentum that there really isn't anyone actively fighting it's use? I see discussions of decriminalization come up now and again, small types of legislation, and invariably they get shot down. But I never actually see anyone specifically opposed to it. It just never gets taken seriously enough to warrant people voting 'yes'.

What's the deal?
posted by quin at 3:40 PM on March 14, 2007


dios:

I understand, and take, your point.

But you didn't address the first question. How do you deal with something that isn't specifically mentioned? Is it not reasonable to suggest that the people have a right to privacy ( They do have the right to feel secure in the home and belongings)? And if they do possess such a right, might it not include smoking pot in private?
posted by Benny Andajetz at 3:43 PM on March 14, 2007


Why are we even worrying about marijuana at all? I don't smoke it myself, but I'm not afraid of the stuff. We treat it like it's nuclear material.

Think "law enforcement-industrial complex". The fear of marijuana itself is more or less trumped up, in my opinion. But how many 10's or 100's of billions of dollars are budgeted and spent every year on interdiction, enforcement, incarceration, etc? That's what's really driving this, in my opinion. The visible arguments are all about mental and physical health, and law and order, but the real, hidden argument is economic.

On the legal front (why do the medical marijuana people always lose these cases), it seems to me that its simply an argument about sovereignity. If the state passes a law, regardless how irrational, it still has the right and duty to enforce it. If the populace is unhappy with the law, all the standard avenues for challenging or overturning it through legislation are entirely open to them.

The sad thing is that the people who currently benefit most, or have the greatest stake in the status quo (my law enforcement-industrial complex) are simply more effective at pressing their case to the population a large than those who would overturn it (the medical marijuana advocates) .
posted by hwestiii at 3:45 PM on March 14, 2007


I asked this in a different thread a while back, but who is still actively against marijuana legalization? I mean apart from law enforcement who has a stake in keeping their operating costs up with arrests, who is it that is still vocally against it?

First off, I'm not sure that is correct. I don't know this for a fact, but I have a suspicion if you polled everyone in the country on whether we should legalized pot, there would be a likelihood that most people would vote no.

But irrespective of that issue, you are asking the wrong question. It is currently illegal. Thus, the 'burden of proof' or 'legislative inertia' has to come from those who want to legalize it. If there is no movement to change the law, then it will stay on the books. You can see all kind of laws which are sometimes called 'precatory statements' that stay on the books because they aren't change. I'm sure we are all familiar with the crazy law trivialities about how its illegal to have a camel on main street in Middleonowhere, Wisconsin or how its illegal to carry wire cutters in Texas. The opponents have to get the inertia to change it by convincing the majorities of both chambers of government that it should be legal. This is done by either changing the minds of those there, or by getting people who hold that view elected. That is the way this country works. Laws don't quit being laws because there aren't vocal supporters of the law anymore.
posted by dios at 3:48 PM on March 14, 2007


But you didn't address the first question. How do you deal with something that isn't specifically mentioned? Is it not reasonable to suggest that the people have a right to privacy ( They do have the right to feel secure in the home and belongings)? And if they do possess such a right, might it not include smoking pot in private?
posted by Benny Andajetz at 5:43 PM CST on March 14


I skipped it because it is a can of worms that I don't think we should open up in this context. I'm leaving for home now, and, thus, don't have the time to have that debate. You are basically asking how should a judge apply judicially-created rights such as the created "right to privacy" which does not exist in the Constitution. That discussion turns into an Roe v. Wade argument which results in the wacko idiots showing up who can't ever get enough fighting over abortion to satisfy themselves. Those bozos also can't seem to grasp the difference between the legal reasoning and opinion in a case and a political issue. So it gets all messy.

But on that point, I will simply say this: to the extent the Court continues to give credence to the idea of a 'right to privacy' as derived from Roe, that right is on very shaky constitutional grounds, and I do not think you will see the Court expanding it any time soon to include a right to take drugs. Because once they make that leap, it all comes tumbling down. "The right to privacy encompasses the right to smoke pot in your house" becomes a license to do *anything* in one's own home. The Court isn't going to open that bucket of worms.
posted by dios at 3:58 PM on March 14, 2007


dios, does that Maryland law also make it impossible for the offender (or his or her attorney, if s/he has one) to cross examine the child witness, or do you think "confront" means "sit in a room with" rather than "cross examine"?
posted by wierdo at 4:01 PM on March 14, 2007


dios- Yes, I'm familiar with the debate. I'd side with you on confrontation, but the issue at hand is whether the federal legislature can restrict commerce in marijuana within the state of California, so obviously the changes in the commerce clause's interpretation are particularly relevant. I'm curious how you would defend Heart of Atlanta Motel v. US or Katzenbach v. McClung from this anti-evolutionary perspective; the Fourteenth Amendment doesn't cover restaurants and motels. I have no trouble with the idea that old principles in new cases may require us to radically rethink the relationship between state/federal intrusion and its restrictions. Quite simply, as the federal government's power grows, the realm of relevant fundamental rights is expanded as well. Given the ninth amendment, these rights must rest, as yet unenumerated, at the heart of a society's sense of liberty and justice.

Simply put, newly "discovered" fundamental rights are necessary to curb newly "discovered" governmental powers. It was stupid of the Ninth Circuit to say so, however.
posted by anotherpanacea at 4:12 PM on March 14, 2007


wierdo, I can't improve on it, so I'll just quote it:
According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an in dispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial." The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for"face-to-face" confrontation but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this en- tire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for "face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "`right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U.S. 1012, 1016 (1988), quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J. concurring).
....
In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation, because the Court has no authority to question it. It is not within our charge to speculate that, "where face-to-face confrontation causes significant emotional distress in a child witness," confrontation might "in fact disserve the Confrontation Clause's truth-seeking goal." If so, that is a defect in the Constitution which should be amended by the procedures provided for such an eventuality, but cannot be corrected by judicial pronouncement that it is archaic, contrary to "widespread belief" and thus null and void. For good or bad, the Sixth Amendment requires confrontation, and we are not at liberty to ignore it. To quote the document one last time (for it plainly says all that need be said): "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him" (emphasis added).
That is from the great "liberal" justices Brennan, Marshall, and Stevens, who joined that opinion written by one who is often called a "conservative."
posted by dios at 4:13 PM on March 14, 2007 [1 favorite]


For a post discussing marijuana, the tone and language are pretty professional. Bravo, mefi.
posted by tehloki at 4:18 PM on March 14, 2007


dios : I don't know this for a fact, but I have a suspicion if you polled everyone in the country on whether we should legalized pot, there would be a likelihood that most people would vote no.

That is why I was wondering if there was an inertial element here. I think it's safe to say that most adult Americans have either smoked marijuana or known someone who has. I'd bet that while most Americans aren't aware of the virtual harmlessness of the drug, they are aware that it isn't nearly as addictive or detrimental as the propaganda would have us believe.

At the very least, I'd wager that most people know that it is less harmful than alcohol. So my curiosity stems from the fact that, if most people understand that it isn't the demon that it was painted as when it was first made illegal. And even a cursory review of the subject matter reveals that there is a lot of evidence to support it's use medically, why hasn't there been a greater movement towards those ends. You mentioned the 'burden of proof' needing to be on the side of those that wish to legalize it, and I agree. But shouldn't the mounting pile of evidence that it doesn't cause harm and can actually help some people provide for some of that burden?

Are we as citizens really just that disengaged from the law changing process, or is there actually some force that actively seeks to keep it illegal.
posted by quin at 4:39 PM on March 14, 2007


Legalization will never happen. And it shouldn't.

Decriminalization is the best option.
posted by ninjew at 4:53 PM on March 14, 2007


quin writes "At the very least, I'd wager that most people know that it is less harmful than alcohol."

Countless tax dollars have been spent to ensure that this is not the case. Our money has also been spent preventing legitimate researchers from proving it. Finally, the Supreme Court usurped vast amounts of power from the States in a bid to prevent them from defining their own medical practices which allow its use.

Dios is right, and it's pretty disgusting. It's one of the things I find disappointing and generally pathetic about modern 'conservatives': they want smaller government with more local autonomy, but they bend right over when the federal government makes massive power grabs that the 'liberals' wouldn't have dared to.

I blame the complacent, television watching, church attending 'good americans' for gobbling up the shit that gets peddled by the pastors, politicians, and press.
posted by mullingitover at 5:07 PM on March 14, 2007








The opinion seems to suggest that should the U.S. Attorney's choose to bring charges against Raich that a necessity defense would not be foreclosed. Quite the contrary, dicta in the opinion suggests that Raich would find a favorable 9th Cir. should a disctrict court convict her on the charges.

I think people are overlooking the (i) procedural posture of the case -- she was seeking an injunction and (ii) the federal structure. As I read the opinion nothing suggests that the federal courts are saying the possession of medical marijuana would violate California law, but instead, that it would violate federal law. This may seem like hair-splitting, but there is a difference.
posted by herc at 5:34 PM on March 14, 2007


[dios] is arguing that the constitution does not change via changes in judicial interpretation, societal values, or the like.

Well, see the referenced amendments. As one example, the prohibition amendment was repealed because of change in people's valuation of state's rights, among other reasons.
posted by Blazecock Pileon at 5:36 PM on March 14, 2007


dios : Little known fact: if the American people want marijuana to be legalized and elect officials to make it happen, pot will be legal.

For more than a decade, medical marijuana has been legal in California, the state where where this woman lives. She has followed the letter of this law as written, including getting a written recommendation from a licensed doctor, and registering with the state to get the legislated ID card (which includes paying a fee/tax).

Beyond that... Since 2004, all personal adult use of marijuana has been effectively decriminalized in Oakland, California, the city where this woman lives.

The marijuana in question is grown in California, purchased in California, and burned in California.

What aspect of interstate commerce has been affected in such a way that the Federal Government feels they can get in the way of both a state's and local communities' rights with regard to this particular issue?
posted by toxic at 5:52 PM on March 14, 2007


"I think it's safe to say that most adult Americans have either smoked marijuana or known someone who has."

I think you need to put some demographic research into that; I suspect that "most adult Americans under the age of 45" is probably more accurate.

How many of those vote? I suspect that we won't see outright legalization of marijuana until that demographic is "most adult Americans under the age of 72," although decriminalization is already happening in a few places, where the police have just stopped busting people for posession of less than a bale o' weed, sometimes not even confiscating.

Good discussion so far, all.
posted by zoogleplex at 6:03 PM on March 14, 2007


dios: designed to protect against changes in beliefs, not some "evolving" "living" document.

Oh, so thats why I cant buy no slaves around here. Hell, I can't even buy an anti-tank missile for my militia. Damn dixiecrats!
posted by damn dirty ape at 6:15 PM on March 14, 2007


What aspect of interstate commerce has been affected in such a way that the Federal Government feels they can get in the way of both a state's and local communities' rights with regard to this particular issue?

Toxic:
To answer your question, you have to go to Wickard v. Filburn and aggregate theory. The idea is that a farmer who grows his own grain in his own back yard affects interstate commerce because if he weren't growing his own grain, he'd be buying it through channels of interstate commerce. Growing his own grain decreases demand thus affecting interstate commerce. If a hotel discriminates against a certain race, it affects interstate commerce because it could discourage people from traveling across interstate lines and pumping money into the economy of a state where the racist hotel is located. After Lopez came along and the Rehnquist Court started putting the brakes on Commerce Clause jurisprudence in the name of Federalism, Gonzalez v. Raich was brought and the Rehnquist Court was forced to confront its own duality: they could either put further limits on the Commerce Clause and potentially undermine a hell of a lot of federal legislation passed pursuant to the Commerce Clause power (including the Civil Rights Act of 1964) or they could find a way to find the Comprehensive Controlled Substances Act within Congress' Commerce Clause power. They chose the latter, and did so by relying upon Wickard.
And it's all Plessy v. Ferguson's fault.
posted by Dr. Zira at 6:34 PM on March 14, 2007


Are parents suddenly OK with theirs teens toking up? Saying a majorit of adults support weed is just silly.
posted by smackfu at 6:39 PM on March 14, 2007


...and there's no possible way to designate an over 21 age limit on an intoxifying substance.

Think of teh childrenz!
posted by LordSludge at 7:07 PM on March 14, 2007


Yeah, I should have probably qualified my statement as nothing more than personal observation. All the adults I know have been around marijuana enough to draw a conclusion. (Very few are actual users. They just, like me, remember it from their younger wilder days.)

And smackfu, I actually know several parents who have said point blank that they would rather their kid got into weed than booze. That said, LordSludge is right. No one is suggesting that we decriminalize it so that the kids can all get high anymore than we let them drink before they are 21. Will it happen? Of course (it happens now and the stuff is supposed to be hard to get) but the same penalties that exists for underage drinking could easily be applied to marijuana.
posted by quin at 7:17 PM on March 14, 2007


Think of teh childrenz!
posted by LordSludge


& teh old fartz!!!11!
posted by taosbat at 7:28 PM on March 14, 2007


To answer your question, you have to go to Wickard v. Filburn and aggregate theory.

Not a shining moment for SCOTUS, I think. Aside from being nonsensical ("a butterfly flapping its wings might cause a hurricane, which might affect interstate commerce — so the Ban the Butterflies Act of '08 is totally legitimate!") and in direct contradiction to the blindingly obvious intentions of the framers of the Constitution ("they just enumerated powers because it was a dull Sunday afternoon with nothing better to do; obviously they meant to grant Congress authority over any event with even the most tangential economic effect, they just said something completely different for shits and giggles"), it's yet another example of the tendency of people in general to applaud any grant of government authority when their fellow is in power, and then bitch and moan to no end when (surprise!) the next guy to come along uses the same expanded authority to ends toward which they are not quite so sympathetic.

the Confrontation clause being deprived to sex offenders by mere judicial fiat based on judge's determinations of societal realities.

That's really disgusting. The argument that "confrontation" need not be in person is tenuous, but plausible, and if the courts were to extent the right to cross-examination-by-video to anyone so inclined, it might have some merit. But to decide that people who are accused of certain classes of crimes do not have rights enjoyed by those accused of other classes of crimes, prior to conviction, is one hell of a "fuck you" to due process.
posted by IshmaelGraves at 10:42 PM on March 14, 2007


Tangential, current urban warfare training exercises involve flying predator drones over NorthCal lawless zones.
posted by hortense at 12:22 AM on March 15, 2007


2. How strange that an innocent herb causes money to burn
They'll jail you or kill you for making those rich fat cats squirm.
They're the fools who make rules with no difference between wrong and right
That's why the Free Mexican Air Force is flyin' tonight.
Uncle Sam in his misery put a Nix on the fields of (Herreros, Guerreros?)
Sayin' shoot down all gringos and wetbacks who dare wear sombreros
Either run for your life, surrender, or stand up and fight --
Or join the Free Mexican Air Force, Mescalito riding his white horse,
Yeah the Free Mexican Air Force is flying tonight!
posted by hortense at 12:35 AM on March 15, 2007


Marijuana is a plant. To say it should be decriminalized but not legalized makes no sense. It should be as legal as tomatoes, so long as they can develop a reliable road-side test for intoxication.
posted by autodidact at 6:08 AM on March 15, 2007


Well, see the referenced amendments. As one example, the prohibition amendment was repealed because of change in people's valuation of state's rights, among other reasons.

The important part was that it went through the legislative process. It didn't just being ignored.
posted by Snyder at 11:27 AM on March 15, 2007


The best case her doctor can make is to enumerate a litany of medical conditions that many brave souls tolerate without a hint of need to publicly declare their misery.

docpops, I have a problem with this statement and here's why -- everyone's physical chemistry is a little bit different and as you no doubt know, what works on one patient may not work the same way or at all on another. In college, I went through all the then-available migraine meds til none of them worked at all and I was stuck with two choices: suck it up or, suck it up. (Fortunately, we've recently found some newer drugs that do appear to work, but for many years it was suck-it-up-city).

After a few surgeries on my elbow, I discovered that Vicodin doesn't work on me but Percocet does. My doctor (who got caught by the state writing Vicodin prescriptions for himself) accused me of being drug-seeking when I asked why that might be. Just about every pain reliever there is (aspirin, Advil, la la la)? Might as well be sugar pills -- I don't even bother.

What does all this have to do with this woman? Well, sometimes prescription drugs don't work the way they're supposed to. In the best case, they should, but sometimes they don't. Why should we deny someone relief from pain when there is a substance that works for her? That's just cruel.

If you ask me (full disclosure: I don't use marijuana and never have, so I don't have a dog in that race), this is all about big pharma being threatened and staking out their territory -- they've got the government in their super-well-funded pocket and they'd hate to see people using pain relievers they can't make money from -- which is why I think legalize/tax the hell out of it is the way to go. If you have a legitimate medical need then you won't care about the price (or it'll end up covered by insurance) and if you're a dumb fratboy with a medical marijuana card, well, pay some more taxes into the system, kid.
posted by bitter-girl.com at 10:48 AM on March 18, 2007


Prison Rape and the War on Drugs
posted by homunculus at 7:26 PM on March 23, 2007


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