cannabisnews.com: Medical Marijuana: The Real Stakes





Medical Marijuana: The Real Stakes
Posted by CN Staff on December 09, 2004 at 12:48:38 PT
By Jeff Jacoby, Globe Columnist 
Source: Boston Globe
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.  The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.But under the federal Controlled Substances Act, the possession of marijuana for any reason is illegal. The question is which law should prevail in this case: state or federal?Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power?Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, some he fed to livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.Source: Boston Globe (MA)Author: Jeff Jacoby, Globe Columnist Published: December 9, 2004Copyright: 2004 Globe Newspaper CompanyContact: letter globe.comWebsite: http://www.boston.com/globe/Related Articles & Web Site:Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmThe Medical Marijuana Mysteryhttp://cannabisnews.com/news/thread20005.shtmlFumbling Federalism (Part Deux) http://cannabisnews.com/news/thread20004.shtml Shattered Grass? -- Metro Santa Cruzhttp://cannabisnews.com/news/thread19998.shtml
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Comment #9 posted by John Tyler on December 11, 2004 at 08:09:42 PT
Yet another expensive study
All of these expensive cannabis studies trying to find justifications for continued prohibition reminds me of the Soviet Union's frantic research work on creating the perfect Soviet man. It all seems so silly now.
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Comment #8 posted by Hope on December 10, 2004 at 15:22:24 PT
Sorry, Nick
I know it was a good answer to Souder. I shouldn't have even mentioned it. It was silly of me to mention it. Another thing some people say...with a change in the last word. I was just runnin my keyboard.
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Comment #7 posted by Nicholas Thimmesch on December 10, 2004 at 10:50:16 PT:
Obviously...
...the use of "bring it on" (said during the campaign by BOTH Bush & Kerry) in this case was said to mimick the arrogance of Souder/Bush: sorry if it conjurs bad images by Texans, as it likely does to the residents of the other 49 states. Sometimes, you just gotta get down in the troth and wrestle with the hogs in Washington.
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Comment #6 posted by FoM on December 10, 2004 at 08:29:17 PT
Hope
Last night we watched Senator Edwards and Mrs. Edwards on Larry King. They smiled and you can tell how they feel about each other. They asked about Senator Kerry. They said he has been wonderful and very concerned for Elizabeth's health. It made me sad once again. We got a killing machine for 4 more years and I don't want to wish my life away but thank god he can't be around after 2008. I literally get sick to my stomach when I see Bush on TV. I believe he will go down in history as the most hated president ever.
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Comment #5 posted by Hope on December 10, 2004 at 08:11:08 PT
..."bring it on":
It scares me when I hear that. It's always been a very Texas thing to say. It's common in our vernacular.It's what David Koresh said to the FBI in the so called “negotiations”…when his church was attacked. It means basically… "Well...if that's what you want to do...OK."The FBI made a huge deal out of that statement by Koresh at the time...touting that it was a "threat". It isn't...it's a reply to aggression. I remember being horrified. I couldn’t believe they were saying those words were a threat. It stunned me to hear Bush say it. He probably paid little attention to the infamous standoff.It’s nothing, but because of Waco…it makes me cringe.
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Comment #4 posted by Nicholas Thimmesch on December 10, 2004 at 07:09:36 PT:
NORML tells Souder....
..."bring it on":Roll Call
December 6, 2004 
By Mary Ann Akers,
Roll Call Staff Pot Fight. Rep. Mark Souder (R-Ind.) is very worried about states that support legalizing smoking marijuana for what he calls “so-called ‘medical’ use.” In a “Dear Colleague” letter sent last week, Souder wrote, “The Food and Drug Administration (FDA) has failed to educate the public against a dangerous drug whose dangers have been kept from the public by those promoting its use. “Vioxx? “No. Marijuana.” Souder goes on to bash the FDA for being “reluctant to educate the public about the false claims and real dangers of smoking marijuana,” despite repeated requests by the House Government Affairs subcommittee on criminal justice, drug policy and human resources, which he chairs. So this week, Souder plans to introduce a bill directing the National Institutes of Health to examine the safety and effectiveness of smoking pot and post the study on its Web site. The National Organization for the Reform of Marijuana Laws, NORML, has another idea. “I suggest that [Souder] and the NIH start by looking at their own 1999 report by the Institute of Medicine, which found that marijuana is an effective medicine for terminally ill patients as well as other studies using whole-smoked marijuana, like the ones being conducted by the Center for Medical Cannabis Research at the University of California,” says NORML’s associate director, Kris Krane, adding that his organization would be happy to post the results of that study on its Web site. “To paraphrase President Bush, ‘Bring it on.’” 
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Comment #3 posted by Hope on December 09, 2004 at 16:04:27 PT
hmmmm....look what we are financing
http://www.fortwayne.com/mld/journalgazette/news/nation/10367006.htm
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Comment #2 posted by global_warming on December 09, 2004 at 15:30:29 PT
Bungling Idiots!
This guy Souder is an effing idiot, another study, ontop of another study, go to the Nixon Shafer Report, enough research went into that study, stop beating around the bush, stop wasting the American tax dollar, stop this insane war on drugs and people.
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Comment #1 posted by FoM on December 09, 2004 at 14:15:33 PT
Press Release from The Drug Policy Alliance
Souder Proposes Marijuana Research?December 9, 2004Rep. Mark Souder (R-Ind.), an historic foe of drug policy reform, has introduced a bill calling for federal research into the benefits of medical marijuana. His bill, the Safe and Effective Drug Act, directs the National Institutes on Drug Abuse (NIDA) to analyze scientific information about marijuana's safety and efficacy -- and directs the Food and Drug Administration (FDA) to distribute the information collected by NIDA. 
Though the bill's stated purpose, to analyze whether smoking marijuana has scientific medical benefit, is a good one, the Drug Policy Alliance is concerned that Souder is trying to set the study's outcome before it even begins -- stacking the government's deck against medical marijuana even more.NIDA is an agency controlled by the Bush administration, which has an anti-marijuana bias. By contrast, the Institute of Medicine (IOM) is a neutral scientific agency that has already researched the benefits of medical marijuana. In 1999, IOM issued the following conclusion:"For patients such as those with AIDS or who are undergoing chemotherapy, and who suffer simultaneously from severe pain, nausea and appetite loss, cannabinoid drugs might offer broad-spectrum relief not found in any other single medication."Research into the clinical benefits of marijuana does exist in Great Britain, Israel and the United States, but U.S. studies have been extremely limited by NIDA's monopoly on producing marijuana for testing. The federal government has for years been involved in supressing evidence about marijuana's benefits and blocking access to the drug for research purposes."This bill sounds like a great idea, but we're troubled by the specifics," said Alliance legislative analyst Caren Woodson. "The bill ignores the many people who use marijuana for medical purposes by means other than smoking, and the many studies around the world showing that cannabis is medicine. We hope any serious investigation of the benefits of marijuana would include all the available evidence instead of picking and choosing to meet a foregone conclusion." 
http://www.drugpolicy.org/news/12_09_04souder.cfm
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