Posted on May 24, 2001

by

Daniel Clark

It isn't easy to take sides with the smug and duplicitous pro-pot movement, so it's going to take me quite a few paragraphs to get around to it.

There are many reasons why one might be pleased that the pot lobby lost its recent Supreme Court case (United States v. Oakland Cannabis Buyers' Cooperative), not the least of which is the underhanded manner in which California's medical marijuana law was enacted in the first place. For starters, the California law, like similar measures in other states, took the form of a ballot initiative, or referendum, rather than a legislative bill. The referendum process is fundamentally anti-republican (small "r"), in that it circumvents the people's elected representatives in order to make a direct appeal to the voters, who lack the opportunity to adequately debate the proposed law, flesh out its terminology, or hold hearings so that they can obtain specialized information from witnesses.

For the benefit of anybody who fails to see what is so objectionable about the referendum process, think of it like this; a referendum is a poll whose results actually matter. Chilling ... isn't it?

Like a polling question, a ballot initiative, such as California's Proposition 215, is subject to manipulation by its authors, who naturally have a desired result in mind. Politics today is lousy with people who make their living by studying the way people respond to particular words and phrases. If former Clinton pollster Dick Morris were to design a ballot initiative, he could find a way to win greater than fifty percent support, regardless of what the issue was, or which side he was on.

Proposition 215 wastes no time in compromising its objectivity. Its very title -- The Compassionate Use Act of 1996 -- takes any debate over its advocates' motives off the table. The issue's other main contention, marijuana's alleged medicinal value, is presented to voters as a given. When a voter who hasn't had time to investigate the issue comes across a phrase like "obtain and use marijuana for medical purposes," or "patients in medical need of marijuana," he is going to assume that the medical application of marijuana has been factually established. Had the proposition instead been submitted to the state assembly, the veracity of its assumptions could have been challenged.

Marijuana's active ingredient, THC, is already commonly prescribed in a pill called Marinol, which is used to combat the nausea associated with chemotherapy. Pot advocates argue that Marinol is much less effective for this purpose than smoked marijuana, although their supporting evidence is almost exclusively anecdotal.

(The much ballyhooed 1999 federal study which "proved" the superior efficacy of pot actually did the opposite, as it concluded that, "Defined substances, such as purified cannibinoid compounds, are preferable to plant products, which are of variable and uncertain composition." Moreover, most of the excerpts in which the report suggests medical indications for marijuana are prefaced with the words "might" or "could.")

Still, the issue remains open for further study, although the pro-pot argument would be significantly bolstered if it were supported by the American Cancer Society, the AMA, or some other organization not primarily dedicated to the total decriminalization of marijuana. Not that these other groups are supreme authorities, but one would have to presume that they had some interest in mind other than getting stoned.

Were the California law limited to cancer patients and others who are now prescribed Marinol, it could have been seriously debated ... but of course, that was never the idea. The manner in which the initiative is framed, which encourages the direct translation of compassion for the sick into support for legalized marijuana, relieves it of the constraints of relevance. Rather than tailoring itself to an isolated condition or two under which marijuana supposedly offers a benefit, Proposition 215 treats the drug as a miracle cure for nearly any sort of discomfort.

Not since Reefer Madness have the effects of marijuana been so badly exaggerated. The initiative finds no pain too great or small for the wonder weed of the future. It lists as the drug's medicinal applications, "cancer, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief."

Unless your senses have been dulled by compassionate use, you probably spotted a loophole there. "Any other illness for which marijuana provides relief" can be practically anything, since "relief" is to be determined by the patient himself. This proposal would legalize pot for anyone who can find a doctor who is willing to prescribe it. In California, there would be no shortage of those. The illness could be anything from a trick knee, to stress, to post-nasal drip. What's more, a written prescription isn't even necessary. An "oral recommendation" will suffice. When a pot-smoker claims to have received an oral recommendation from a physician, how can that be disproved?

The authors of Proposition 215 would contend that they had to leave the conditions open-ended, in order to accommodate whatever as yet unknown medical miracles the cannabis leaf might perform in the future. The truth be known, it is probably even capable of repairing vinyl, deterring car theft, and making mountains of coleslaw.

Groups which have been active in the medical marijuana debate, like the National Organization for the Repeal of Marijuana Laws (NORML), want pot legalized for recreational use. Their campaign toward that end has not exactly been stealthy. To think that they're only concerned about helping the sick would be as naive as believing that celebrity pot crusader Woody Harrelson only wants to grow hemp in order to make clothing out of it.

Pot activists' penchant for exaggeration may have played a role in costing them their case, if a press statement by Robert Raich, attorney for the Oakland Cannabis Buyers' Cooperative, is any indication.  If Raich's statement, which compares drug laws to slavery and U.S. v. OCBC to Dred Scott, were an eleventh-grade oral report, a C-plus would be generous.

"Eight years after Dred Scott, the dark chapter of slavery ended, but it took a civil war to end it," he says. "What we have now is another civil war -- a war against medical patients." If that's the type of rhetoric he brought with him before the bench, it's no wonder he lost.

If the creators of Proposition 215 were motivated solely by concern for people with severe illnesses, they could have crafted a narrowly defined law to deal with those cases only. Instead, they have produced a sham and a farce, by using cancer patients as rhetorical human shields for their attempt at wholesale decriminalization of pot.

If the voters of California are going to be duped into accepting such a law, that's their problem. You don't have to favor drug legalization to recognize that the Constitution makes no provision for the federalization of drug laws. Unless an anti-drug amendment is passed, regulation of drugs is constitutionally a state issue, in accordance with the Ninth and Tenth Amendments.

The Supreme Court rejected Proposition 215 by an 8-0 vote (Justice Breyer, whose brother had ruled on the case in a federal district court, recused himself.) Its reasoning, as written in a majority opinion disappointingly written by Justice Clarence Thomas, was that the proposition conflicted with the federal Controlled Substances Act, which does not consider marijuana to have any characteristics which would provide a medical exception to its illegality.

As far as the federal courts are concerned, federal law supersedes state laws. This is totally proper, as long as the federal law involved is consistent with the Constitution. The Controlled Substances Act, however, is so unconstitutional that it has to lean on the commerce clause in order to justify itself.

For those who are unfamiliar with commerce clause logic, it goes something like this. Article I Section 8 of the Constitution empowers Congress to regulate interstate commerce. Bananas can be bought and sold, and they can also be transported across state lines. Therefore, Congress has the power to prohibit people from owning, growing or eating bananas. Granted, the crop at issue here is not as benign as bananas, but the principle is the same. No coherent connection exists between prohibiting drug abuse and regulating interstate commerce.

In dismissing the OCBC's Ninth and Tenth Amendment concerns, Thomas writes, "... Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so ..."

The Ninth Circuit Court of Appeals had previously ruled that marijuana merits a medical exception from the Controlled Substances Act. The Supreme Court rightly decided that the classification of the drug under that law did not allow such an exception to be made, but it did not consider whether that law itself was constitutional. Throwing that responsibility back to the Circuit Court is an almost guaranteed way of never having to deal with it. If the justices of the Supreme Court are going to wait for the day the ultra-liberal Ninth Circuit Court makes a ruling which is at all constitutionally relevant, all nine of their lifelong terms will by then have ended.

Defenders of liberal activist judges like to respond by arguing that conservative judges, for all their talk about strict constructionism, are every bit the activists that their colleagues are on the left. That's seldom actually true, but it should never be. It comes as no surprise that the Court as a whole is willing to allow unconstitutional federal expansion by way of the famously misinterpreted commerce clause, but for Justices Thomas and Scalia to concur with such an opinion is extremely unsettling.

Okay, so this case is not an example of legislating from the bench, because the justices made their ruling based on an existing law passed by the legislature. But allowing the federal legislature to assume a power not assigned it by the Constitution is nearly as bad. What Congress did in this case is essentially to create a constitutional amendment by statute. This means that power constitutionally delegated to the states has been taken from them without their having given consent through the ratification process.

The Supreme Court has got it all backwards. The constitutional delegation of powers is not an "underlying issue" in the case of U.S. v. OCBC. It is the main story. The medical marijuana issue is only the setting. By deliberately overlooking the Ninth and Tenth Amendment implications of this case, the justices are remaining as willfully blind as those who ignore the pot advocates' obvious ulterior motive.

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