cannabisnews.com: Who Has The Power?





Who Has The Power?
Posted by CN Staff on November 30, 2004 at 09:18:28 PT
By Leo Morris for The Editorial Board
Source: News-Sentinel
For the first time since 1942, the Supreme Court is hearing a case that could redfine federalism and affect the very structure of our government for decades to come. The specific arguments are over the medical use of marijuana, but the core issue is whether state initiatives or federal anti-drug policy will prevail. And the usual “liberal” and “conservative” positions are likely to get so muddled that no one can safely predict on which side the court will come down.
Indiana U.S. Rep. Mark Souder, for example, is, by almost anybody’s standards, a staunch conservative, which should put him strongly on the states’- rights side of the issue. That principle, in fact, led the court in a 1995 case to start watering down the federal government’s ability to use the Constitution’s interstate commerce clause to usurp states’ rights. In that case, the court struck down the Gun-Free School Zones Act, saying that Congress was using much too broad a definition of interstate commerce. That move very much pleased the National Rifle Association, a group that gives Souder an A grade as a staunch supporter of the 2nd Amendment.But Souder was among those filing a friend-of-the-court brief on behalf of the federal government in the medical marijuana case, arguing that the case will influence other areas in dispute between national laws and states’ rights. Souder calls himself a “unionist,” meaning he sides with Washington when the issue is of national interest, and a “status-quo conservative,” which means he would resist efforts to add to the federal government’s power as well as attempts to lessen the power it already has.Consider how this issue will test the Supreme Court’s members. Will liberal justices favor medical-marijuana initiatives because they see them as good social policy, even though it will strengthen the states’ rights that they loathe? Will the conservatives strike them down because it would help in the war against drugs, even though it would retreat from the states’-rights path they have embarked on? Souder thinks the issue might come down to the votes of Clarence Thomas, the court’s purest conservative, and John Paul Stevens, the most reliable liberal. Which one will flinch?When the nation was founded, the Constitution was written by federalists, who distrusted the power of a central government, and the anti-federalists, who distrusted it more. The federalism that resulted from their ideological clashes gave the federal government only a few, explicitiy specified powers; everything else was a state, local or even personal decision. Though the Constitution gave Congress the right “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” that clause, as intended, allowed the federal government only minimum intrusion on state activities in the nation’s early years.Over the years, the powers of the federal government to regulate “commerce” were expanded gradually. First, only limited border functions were permitted to be governed. Then it was decided that interstate commerce could be regulated as it went through the states. Then any transactions that affected interstate commerce could be regulated. Finally, “interstate commerce” became almost anything Congress declared it was.The landmark case was 1942’s Wickard vs. Filburn. A farmer refused to pay the fine for growing wheat on more acres than allowed. But the court ruled against him, though the acreage in question was for wheat consumed only on the farm. Any growing of wheat was necessarily part of the national wheat-growing enterprise. The wheat the farmer grew only for his own consumption meant there was a customer somewhere someone else had to sell to. After Wickard, the commerce clause was used to allow the federal government to do almost anything, most famously to enact a series of federal civil rights laws. Even a lunch counter that bought all its supplies locally was “insterstate commerce” because a customer from another state might set foot in the place. (Interestingly, friend-of-the-court briefs in favor of medical marijuana have been filed by Mississippi, Alabama and Lousianna, three states that held out on civil rights the longest on states’ rights grounds.)The medical marijuana issue contains eerie echoes of the Wickard case. Since 1996, California and 11 other states have passed laws allowing people certified by a doctor as needing it to grow their own medicinal marijuana, said, among other things, to be effective in relieving nausea and pain for people undergoing harsh cancer treatments. But federal law classifies marijuana as an illegal drug. Advocates of medical use say the marijuana is home-grown, for use only by the growers. But if grower-consumed wheat can be “interstate commerce,” certainly marijuana can be.If “precedent” is important to some people, which precedent gets the most weight? The Constitution’s original intent? The Supreme Court’s expansionism going back to 1942? The contractions that began in 1995? What’s a strict constructionist to do?Rep. Souder acknowledges that conservatives aren’t very consistent when it comes to federalism. But he argues that “neither is anybody else,” and it might be impossible to be a purist of any kind considering how complicated the issue has become. For one thing, the federal government has assumed far more importance in modern times, and that will be hard to undo. Furthermore, what about international commerce? What about the fact that terrorism and the drug trade are so intertwined? What about the effect of the Internet – the difficulty in collecting state taxes, for example? What about the FDA’s role as the clearinghouse for safe and effective drugs? That could be affected not only by the marijuana case (should people be able to synthesize their own anti-depressants, for example?), but the cheap-drugs-from-Canada controversy.Souder would agree that the medical marijuana issue is a critical case when it comes to defining the federal-state relationship. But he would also argue that that is only the tip of the iceberg.Note: Medical-marijuana case before court will test everybody’s definition of federalism.Source: News-Sentinel, The (Fort Wayne, IN)Author: Leo Morris for The Editorial BoardPublished: November 30, 2004Copyright: 2004 The News-SentinelContact: nsletters news-sentinel.comWebsite: http://www.fortwayne.com/Related Articles & Web Sites:Raich vs. Ashcroft http://www.angeljustice.org/Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmCourt Hears Medical Marijuana Casehttp://cannabisnews.com/news/thread19919.shtmlHigh Court Must Take Lead in MMJ Debatehttp://cannabisnews.com/news/thread19917.shtmlSouder Urges Court To Halt Medical ‘Pot’http://cannabisnews.com/news/thread19870.shtml
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Comment #2 posted by Sam Adams on November 30, 2004 at 16:43:52 PT
Souder
Souder calls himself a “unionist,” meaning he sides with Washington when the issue is of national interest, and a “status-quo conservative,”How about "coward"?
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Comment #1 posted by druid on November 30, 2004 at 09:31:09 PT
A couple of good news items :)
Kona medical marijuana users receive settlementBy John Burnett - 67AM KPUA News(Kailua-Kona-KPUA.net) -- A Kona couple with permits to grow and use medical marijuana has received a $30-thousand dollar settlement from the county for wrongful arrest.John and Rhonda Robison and houseguest Kealoha Wells were arrested at their home July 8th, 2002 after showing police a greenhouse they used to grow marijuana.Although they had the proper permits and were growing fewer plants than the medical marijuana law allows, police alleged the plants were not properly labeled and arrested the trio. They were held in police custody for eight hours, then released without charges.------------snipped-----------------http://www.kpua.net/news.php?id=3875******************************************************Court Rules Against 'T' On Marijuana AdsJudge Says MBTA Violated Free Speech Rights BOSTON -- A federal appeals court has ruled that the MBTA violated free speech rights by refusing to display ads from a group that wants to legalize marijuana.The 1st U.S. Circuit Court of Appeals found the MBTA's refusal to display three ads submitted by the nonprofit group Change the Climate violated the U.S. Constitution because it was based on subway officials' disapproval of the views expressed in the ads.The MBTA rejected the ads four years ago, claiming they encouraged children to smoke marijuana. The transit authority argued that is has the right to protect riders from offensive or illegal messages.In a ruling issued Monday, the 1st Circuit found that the MBTA regularly displays liquor ads that are more appealing to juveniles than the ads on marijuana laws."MBTA advertising space is literally a billboard for the expression of opinions to citizens at large. As a government agency, they shouldn't have the right to pick and choose what opinions they allow to be advertised," said Harvey Schwartz, an attorney for Change the Climate, which is based in Greenfield, Mass.The ruling orders the MBTA to display the three ads submitted by the group. http://www.thebostonchannel.com/news/3958304/detail.html
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