The U.S. Supreme Court ruled Monday there is no "medical necessity exception" to the federal Controlled Substances Act.
The California-based American Medical Marijuana Association was quick to reassure concerned parties that the ruling was of sharply limited scope:
"It is important to recognize that the Supreme Court decision did (start ital)not(end ital) strike down or in anyway modify any state medical marijuana laws," the AMMA wrote in a press release. "The Supreme Court did (start ital)not(end ital) say that citizens don't have the right to cultivate and possess medical marijuana within thir own state borders. All this decision said is that medical necessity is not a defense to federal law.
"Bottom line," the AMMA continued, "medical marijuana still stands in those states that have approved it. Even the medical marijuana clubs will be largely unaffected, because they will simply switch from distributing medical pot to helping patients grow their own. ..."
Maybe. But it turns out I wasn't the only person whose first response was to recall the high court's previous nadir of homicidal hair-splitting, when Justice Taney held in the infamous 1857 Dred Scott decision that black men are property, not persons entitled to the protection of the law.
The court's defenders will whine that the justices aren't supposed to "legislate from the bench"; that they were only asked whether there is a "medical necessity defense" under the federal Controlled Substances Act, whereupon they looked it up, determined there was none, and so ruled. The question of the Drug War's constitutionality wasn't answered because it was never asked. The court simply tells us what Congress intended.
Which is a black-hearted lie, of course. If Congress in a fit of madness were to enact the Nazi race laws tomorrow, would the justices sit there with straight faces, instructing us, "We cannot locate within the Act any 'religious freedom' exemption to the requirements that Jews sew yellow stars on their clothing," etc.?
Of course not. When it's the First Amendment right of religious freedom that's involved, everyone understands the court's first duty is to determine whether the law in question is constitutional on its face. If it isn't, under the great precedent of Marbury vs.. Madison, the law is held to be null and void.
Besides which, attorneys for the Oakland Cannabis Buyers Cooperative et al. (start ital)did(end ital) assert (as Justice Thomas acknowledges) that the federal drug statute "exceeds Congress' Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of th people under the Fifth, Ninth, and Tenth Amendments."
Fact is, the entire federal drug war is blatantly unconstitutional, and any high court obeying its oath to preserve our government of limited power would have thrown it out in its entirety the first time it got a look at it.
There are no fewer than three independently sufficient grounds on which this could and should be held. The weakest of these is the 10th Amendment, which tells us that any power not specifically delegated to the United States by the Constitution is reserved to the states or to the people. Since nowhere in the Constitution is Congress delegated any specific power to regulate what responsible adults choose to put in their own bodies, any state law (like California's successful 1996 medical marijuana proposition) supersedes federal authority.
This is the weakest argument simply because it would seem to authorize (start ital)state(end ital) drug wars. Now, truth be told, even state drug wars are further banned under the 14th Amendment (the second sufficient grounds for tossing out the Drug War). This amendment bans the several states from "abridging the privileges or immunities of citizens of the United States."
Under the 14th, the high court could and should have thrown out California's current marijuana distribution scheme not because it allows (start ital)some(end ital) marijuana use, but because it places any restrictions on marijuana use, at all.
Am I saying Americans have some kind of right to drugs? Damned right, and here's where we come to the constitutional provision which even a second-year law student could hardly ignore. The Ninth Amendment advises the justices that, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
In 1787 and thenceforward, at least through 1915, did our ancestors on these shores "retain the right" to grow, produce, import, buy and sell opium, cocaine, alcohol and marijuana whenever they pleased, without federal restriction save the occasional modest excise?
Indeed they did. And the proof is that when Congress wanted to ban one of these forms of commerce, a separate constitutional amendment -- the 18th, since repealed -- had to be enacted to allow a federal ban on "intoxicating liquors."
So: when was the parallel and necessary constitutional amendment ratified, authorizing the War on Drugs?
Pardon me, I didn't hear that. Could you speak up?
Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $72 to Privacy Alert, 1475 Terminal Way, Suite E for Easy, Reno, NV 89502. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at 1-800-244-2224.
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Vin Suprynowicz, vin@lvrj.com
"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)
"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken
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