It is disappointing, for those of us alternately engaged in teaching Iraqis how to square off democratically on divisive issues of state, to sit down and disconnect the telephone, intending to spend a few uninterrupted hours on the issue argued on Monday before the Supreme Court. The issue, of course, is whether individual states can legislate with regard to drug laws if the federal government has already staked out a position on the matter.
We have very concrete circumstances here: 35 states grant exemptions of one kind or another to producers, retailers, consumers, cons, and ex-cons involved with cannabis. The arguments made before the Supreme Court were blissfully simple, in one respect. What the government lawyers argued was that the states were in violation of the Constitution, which gives to Congress, and only to Congress, authority to regulate commerce. Accordingly (they argue) all those state laws are stuff and nonsense. One jurist wants even more: He wants punitive action taken against those states that, acting on their various plebiscites and propositions, have been less than rigorous in enforcing the anti-narcotics laws.
An Iraqi surveying the scene would be struck by the application of the democratic canon, as he is led to understand it. For a century, the Constitution forbade the treatment of black Americans by standards different from those applied to other Americans. What we learned was that actually to enforce the ban on unequal treatment you had to have a felt political commitment to passing a new law or enforcing the existing ones.
The Supreme Court justices are faced with pretty outspoken contrarieties on the drug business. In 35 states, legislators have taken action to squirm out of the totalist ban which is a part of our legacy, and so the focus became techniques of evasion. There was a great flowering of these back during Jim Crow, which culminated in the elderly, scholarly Negro arriving at the polling booth and being told that he could vote only if he could read Greek. The ballot in hand, the petitioner muses, “Ah kin read Greek, aw right. It says here: ‘No nigger’s goin’ to vote today.’” That made for civil-rights barracks humor, but it held the feds at bay for about 75 years.
The modern version of the civil-rights plea is: Unless I can have marijuana, I will suffer, I will vomit, I will, finally, die.
The hardliners haven’t neglected a defense on this matter. Hand on a bible, they will swear that all the effective ingredients in a cannabis plant can be leached out and poured into a cookie of sorts, the taking of which will relieve you just as a draw on a cannabis weed would do.
The scientists have a hard time here, because it is difficult to argue with a flesh-and-blood-human being who says take your effing placebo and run it up your behind. A colleague of mine, the author of four outstanding books on American history, put it roughly like this: I am telling you I tried the placebo, and I tried marijuana. I continue wretchedly sick with the fake stuff and hugely solaced by the grass. I am an honors graduate of Yale University, politically a conservative opposed to drug legalization and please leave off the cant about how it doesn’t make any difference, because I had cancer, and it does.
The complications in a comprehensive ban are manifest. What is the proper punishment for the mother who brings a reefer to her son’s cancer bed?
And there is the putative respect paid to the medical community. Does the article in the Constitution that gives Congress the right to regulate commerce extend to writing law on the uses of a drug, given that medical experience is uniquely qualified to pass on such questions?
The Iraqi who is looking in on how we handle our political conundrums will jot down that one way to do it is not to force the point. People in the western states especially have been drawing on cannabis with virtual impunity, but what the Supreme Court is being asked to do is to say: One set of laws is right, another set of laws is wrong, and we’re going to tell you which is which.
Sometimes, the observer will say to himself, nothing less than that can be done, as when we were coexisting with unequal treatment under the law. Sometimes the mature democracy will say: We have to adjudicate. After all, we did it for Dred Scott.