cannabisnews.com: Commentary: Has Justice Gone To Pot? 





Commentary: Has Justice Gone To Pot? 
Posted by CN Staff on December 04, 2004 at 09:10:13 PT
By Scott D. O’Reilly
Source: Intervention Magazine
Will the Supreme Court turn its back on states’ rights on the issue of medical marijuana?As a candidate for president in 2000, George Bush clearly staked out his position on medical marijuana: as governor of Texas he opposed medical marijuana, but he stated that it was an issue best left for individual states to decide. For cynical observers, it seemed like then governor Bush was trying to have it both ways, but his position was far more consistent than Al Gore’s, who seemed to change his position on medical marijuana more often than his wardrobe.
But demonstrating he’s willing to leave no principle behind, Bush has himself flip-flopped on the issue, his administration arguing before the Supreme Court that draconian Federal drug laws supercede Democratic initiatives in individual states that allow the use of marijuana for medicinal purposes.As the first issue before the Supreme Court since president Bush’s election, the case will almost certainly be a harbinger of the extremely conservative direction the Court is likely to take over the next several years. And though the matter has yet to be decided, there is every reason to expect that the court will find some way to carve out an exception to the states’ rights revolution that has been the Court’s hallmark, and in effect quash the medical marijuana movement.Under Rehnquist’s tenure, the Court has consistently ruled against Federalism, arguing that Congressional attempts to legislate gun free zones around schools, secure rights for the disabled, or enact ecological protections infringed on state sovereignty. The one exception, of course, was the infamous case of Bush vs. Gore, where the Court contradicted the states' rights philosophy it normally espoused, to support a states' rights candidate!Most observers of the Court recognized that stomaching the judicial hypocrisy of Bush vs. Gore might have been the best way to avoid a full-blown Constitutional crisis. The case was important, but it was not a matter of imminent life and death. The same cannot be said for the case of Ashcroft vs. Raich.The case involves Angel Raich, a 38-year-old mother of two, who suffers from an inoperable brain tumor, a chronic wasting disease, and numerous other life-threatening disorders. Her doctor has testified that without access to medical marijuana, Angel will probably die of malnutrition since she is unable to tolerate other appetite stimulants to counter the effects of her wasting disease.Angel is one of millions of Americans who use medical marijuana in states that have approved ballot measures allowing severely ill patients to use marijuana for medicinal purposes on a doctor’s recommendation. The state initiatives, however, conflict with Congress’ classification of marijuana as a Schedule II substance with no medicinal value whatsoever.Congress, of course, is free to pass laws proclaiming the earth is flat, but that hardly makes it so. The most authoritative study on the topic, issued by the National Institute of Medicine (1999), clearly recognized that marijuana contains active ingredients that are therapeutically efficacious for a wide variety of ailments. While the study went on to conclude that “smoked marijuana” is not an ideal way of delivering marijuana’s active ingredients, it did acknowledge that for a limited number of fatally ill patients, the rewards of smoking marijuana almost certainly outweigh the risks.The Supreme Court’s decision is likely to turn on the arcane matter of interstate commerce rather than Angel’s fundamental right to life. In 1942 the Supreme Court ruled, in Wickard vs. Filburn, that Congress had the right to regulate wheat farming, even if the wheat grown was not intended for economic or interstate commercial purposes. During oral arguments for Ashcroft vs. Raich, Justice Scalia admitted that “I used to laugh at Wickard,” but his demeanor suggested that he saw in the case a convenient precedent for trumping his usual states’ rights sympathies.In 2001 the Supreme Court ruled that cannabis cooperatives – organizations that distribute medical marijuana to ill patients – were not entitled to a medical defense protection by the Constitution. The distinction between an organization seeking a medical defense protection and an individual seeking that protection is important because opponents of medical marijuana craftily maneuvered the legal fight onto terrain that they knew worked to their advantage – it would be much easier for the Court to rule against an organization than a desperately ill person. The Court’s earlier sleight-of-hand provided a precedent that chips away at medical marijuana without tackling the issue on a more fundamental and honest ground, that of a patient’s rights. This case, too, will likely turn on tangential issues. One should keep in mind that a technicality is the first rule of a scoundrel, and if the Supreme Court rules against Raich, they will almost certainly absolve themselves by claiming that a Democratic Congress is free to reclassify marijuana in recognition of its medicinal value. But expecting that “enlightened” body to craft legislation based on evidence rather than ideology is about as likely as discovering a pen of pigs spouting Shakespeare’s sonnets.The Supreme Court will undoubtedly content themselves that they have upheld the principal of “the separation of powers” – Congress makes the laws, the Judiciary interprets them, and the Executive implements them. But lost in the shuffle will be millions of vulnerable citizens like Angel Raich, victims of empirically unsound laws, sophistic Justices that adopt and discard principles like states’ rights to suit their whims, and hypocritical “Compassionate Conservatives” like George Bush who insisted medical marijuana was an issue that should be decided by the states before he assumed office, and has since instructed his Justice Department to argue just the opposite before the Supreme Court.The decision is due this summer, so perhaps I should reserve judgment, but everything I’ve seen thus far suggests that our judicial and Constitutional system has gone to pot.Scott D. O'Reilly is an independent writer with degrees in philosophy and psychology. He is a contributor to the book The Great Thinkers A-Z and is working on Deconstructing Demagogues, a book which examines how politicians use and misuse language. Newshawk: MayanSource: Intervention Magazine (Web)Author: Scott D. O’ReillyPublished: Friday, December 3, 2004 Copyright: 2004 Intervention MagazineContact: info interventionmag.comWebsite: http://www.interventionmag.com/Related Articles & Web Site:Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmMedical Pot or Not? High Court To Decide http://cannabisnews.com/news/thread19973.shtmlSanity's AWOL in War on Drugshttp://cannabisnews.com/news/thread19972.shtmlMarijuana Use Isn't Commercehttp://cannabisnews.com/news/thread19971.shtml
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Comment #14 posted by schmeff on December 07, 2004 at 10:52:09 PT
Thanks, afterburner
for post #5I've known about the Wickard v. Filburn case for awhile, and about its precedent for a more expansive interpretation of the Commerce Clause, but had not realized its historical context.It's ironic. By the time the Supremes ruled on Wickard v. Filburn, they were FDR appointees and ruled as FDR wished, enabling a federal power grab that then enabled the New Deal.The Bush neoconservatives are ideologically bent on destroying all traces of the New Deal, hence Scalia's "I used to laugh at Wickard..." Indeed, the Rhenquist Court has repeatedly ruled AGAINST the principles established in Wickard v. Filburn. As, in my opinion, they should (based on the principles of limited federal powers clearly set forth in our Constitution.)But as the 2000 election proves, there is no hypocrisy too great for the Rhenquist Court. Because they dispense ideology, not jurisprudence, they will flip-flop for their masters. In spite of their abhorence of New Deal principles, if a New Deal tool serves their purpose, they'll use it...and smile that smug rapSCALIAn smile.I liked the mother's milk metaphor. My metaphor for Wickard v. Filburn, offered here before, was that such an expansive view of the Commerce Clause would allow for federal regulation of masturbation. Too much self-love would affect the sizable economic venue of sex workers, and negatively affect commerce.I guess the "breast milk" analogy is more pc. 
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Comment #13 posted by gloovins on December 04, 2004 at 18:26:16 PT
Ahhhh
Anyone catch this mistake?:"The state initiatives, however, conflict with Congress’ classification of marijuana as a Schedule II substance with no medicinal value whatsoever."Ahhh, more lazy journalism...I wrote to the author, don't worry all. We'll see if he answers me.
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Comment #12 posted by Hope on December 04, 2004 at 14:42:30 PT
Robbie
Sounds like a rant that should be emailed to every paper that chooses such headlines.Go for it!
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Comment #11 posted by Robbie on December 04, 2004 at 13:59:31 PT
These stupid headlines...
OVER and OVER and OVER and OVER again!Do they think anybody is still giggling about their stupid references?Sorry for the rant :-/
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Comment #10 posted by Hope on December 04, 2004 at 13:56:32 PT
Dr. Slider
As in the problem with the knowledge of good and evil...can't have one without the other.
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Comment #9 posted by dr slider on December 04, 2004 at 13:39:15 PT:
Hope
If All was "in the light" and there was no darkness, how would we see the light?The grail has no utility without the emptiness within.
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Comment #8 posted by ekim on December 04, 2004 at 12:17:53 PT
fyi
 Movie on Sundance Ch Dec 5 and 15 will be on religion.more could be written about the fact that the Gov't has been growing and giving Cannabis to 8 U.S. citizens for over 25 years with out one med study of how Cannabis has impacted their health.
http://www.leap.cc/events
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Comment #7 posted by FoM on December 04, 2004 at 12:01:25 PT
Just a Note
Because of the volume of news I have been archiving some articles and I don't want anyone to miss them if they aren't aware of the archives. I believe most people know about the archives but I thought I should mention it again.http://www.cannabisnews.com/cgi-bin/cgiwrap/cnews/newsread.pl?25000
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Comment #6 posted by Hope on December 04, 2004 at 11:22:20 PT
Nausea warning
Thanks...Kap. When I saw what you wrote, my first thought was, "Oh, Lord."These are the men who "pervert the gospel"...they take a simple thing and twist it to frighten others and themselves because they are convinced that God is weak and that Darkness has more power...what a waste of breath. Darkness is a god to them. Darkness is nothing. A place where Light has not reached. A place where some people run and hide and even dwell.I might download it sometime...right now it makes me nauseous just to think about it and I don't want to be nauseous. I have too much to do. If the God they preach wanted to give us thirty two commandments that were a good example of how to benefit more from life, then, I believe He would have.
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Comment #5 posted by afterburner on December 04, 2004 at 11:21:41 PT
The Dirty Little Secret of Wickard v. Filburn 
The Dirty Little Secret of Wickard v. Filburn (FDR's "Baby")“Younger and More Vigorous Blood”: FDR on the Judiciary http://historymatters.gmu.edu/d/5092/{Frustrated by the elimination of the NRA and other programs, like the Agricultural Adjustment Act (United States v. Butler, 1936) through the courts, and overconfident after his big win in the 1936 elections, Roosevelt proposed a novel but not entirely unprecedented solution in 1937. He would add one new judge to the federal judicial system for every active judge over the age of seventy. The result would create fifty new judgeships, including up to six new Supreme Court justices. Having established these new positions, the president could then appoint new judges friendly to his administration and tip the balance in his favor. Roosevelt posed the measure as a plan to streamline the Court system and ease its caseload, as he explained in this fireside chat on March 9, 1937. Roosevelt argued that the Court expansion bill would merely restore the balance of power intended by the Constitution’s framers, a balance that had been lost to a reactionary, backward-looking, shortsighted group of old men.} The Truth about FDR
http://www.mises.org/freemarket_detail.asp?control=355&sortorder=articledate{Interestingly, shortly after the Supreme Court declared the Agricultural Adjustment Act (AAA) unconstitutional in early 1936, the Department of Agriculture's Bureau of Agricultural Economics reported that in the case of cotton, farm income would have been at least as high and perhaps even higher in the absence of the AAA. The following month, Cornell University's James E. Boyle argued in the Atlantic that among other things the AAA had been responsible for the joblessness of at least two million souls, especially sharecroppers and other farm laborers. (What work is there for these people to do when nothing is being produced?)}A President Tries to Pack a Court http://gummibear.netfirms.com/HTML/courtpacking.html{The practical effect of this proposal was that the President would get to appoint six new Justices to the Supreme Court (and 44 judges to lower federal courts) thus instantly tipping the political balance on the Court dramatically in his favor. The debate on this proposal was heated, widespread and over in six months. The President would be decisively rebuffed, his reputation in history tarnished for all time. But the Court, it seemed, got the message and suddenly shifted its course. Beginning with a set of decisions in March, April and May 1937 (including the Social Security Act cases) the Court would sustain a series of New Deal legislation, producing a "constitutional revolution in the age of Roosevelt."}Common Sense Americanism - Wickard v. Filburn
http://www.csamerican.com/sc.asp?r=317+U.S.+111{As willing as our contemporary Supreme Court may seem at times to stretch the Constitution to achieve an end, from a purely American point of view, the Stone Court's decision in the sixty-year-old Wickard case has to be one of the scariest on record. It also makes plain the underlying philosophies of Roosevelt's "New Deal" administration, and the willingness of the Court in general to sway to the prevalent beat of the drum. 
Further, it reinforces the argument for a clearer definition of Congress' power over interstate commerce, contained in Article I, Section 8 of the Constitution. {Part of the New Deal's plethora of programs handing government control over the free market was the Second Agricultural Adjustment Act of 1938. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price gouging. {Filburn was just such a farmer. He maintained a small dairy herd and some chickens on his Ohio farm, and sold milk, poultry and eggs on the open market. He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and grind into flour for his own use. None of the wheat left his farm. {Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941. From this added acreage, he realized a harvest of 239 bushels, consumed it all on-farm, and was penalized 49¢ per bushel by the government -- a "tax" rate of about 57% of that year's average market price. Incensed, Filburn sued on the basis that the Commerce clause did not empower Congress to regulate crops that never left the farm, let alone enter interstate commerce. {Unfortunately, by 1942 when his case wound its way to the U.S. Supreme Court, all but one justice had been appointed by President Roosevelt, and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected New Deal logic.} 
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Comment #4 posted by FoM on December 04, 2004 at 11:20:06 PT
An Interesting Research Article
Exploring Medical Marijuana 
 By Gregory T. Carter, MD For thousands of years, humankind has used marijuana for its medicinal powers. The Chinese pharmacopoeia, written in 2800 B.C., documents using marijuana for its analgesic properties. And the people of ancient Greece and Rome treated various illness with the substance, as documented by the Herbal of Dioscorides and the writings of Galen. In the 19th century, British East India Company surgeon William O'Shaughnessy introduced cannabis for medicinal purposes to the United Kingdom, using it in a tincture for a wide range of medical treatments.Given this historical track record of therapeutic usefulness and relative safety, one might ask what happened to medical marijuana? A lot of the controversy and societal debate about marijuana can be traced to one man, Harry Anslinger. He strongly opposed marijuana and headed the Federal Bureau of Narcotics in the 1930s. Anslinger also was well-known for prosecuting doctors who "over-prescribed" narcotic medication. His actions may well be responsible, in large part, for the concern that still exists today in the medical community about prescribing pain medication. 
Complete Article: http://nurse-practitioners.advanceweb.com/common/Editorial/Editorial.aspx?CC=45326
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Comment #3 posted by kaptinemo on December 04, 2004 at 10:24:38 PT:
Unrelated...but stunningly worth it
Chris Bennett of POT-TV has done it again!http://www.pot-tv.net/ram/pottvshowse3280.ramAbout half-way through is a blindingly ignorant TV preacher holding forth about how MJ consumption is the Work of the Devil, sign of the End Times, etc. If you don't have broadband and have lots of time to download, right click on the link and save to your box. It's just incredible the lengths putative 'Men of The Cloth' are willing to LIE for their beliefs.Nausea warning: Do not view without sufficient anti-nausea/mood elevting medication. Those insufficiently medicated may be subject to fits of rage at the banal stupidty of the comments of our opposition LOL!
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Comment #2 posted by Sam Adams on December 04, 2004 at 09:26:14 PT
flip-flopping
Oh yeah, that's right, Bush did a classic flip-flop on medical MJ.How come I never read about that in the newspaper?How come the Democrats never brought it up? I've got a new conspiracy theory: the Democrats don't want to win.  They've found a very comfortable middle ground, where their political machine collects millions every 4 years to run yet another loser. They're just exploiting people's outrage, not trying to lead in another direction. 
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Comment #1 posted by dr slider on December 04, 2004 at 09:22:13 PT:
lazy journalism
If O'Reilly had put as much effort in researching the facts as he did making his words wax poetic I'd be impressed.
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