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 t
is a big confusing sprawl of a system, but there are those who love
it, and it takes lifelong love for our system, after
weighing
the Supreme Court's decision. The anomalies knock you down, but
there is still light….
We have, in California, the principal exfoliate of United States
v. Oakland Cannabis Buyers' Cooperative, No 00-151. It is
this. If you grow marijuana in California, you can't be arrested
by state troopers, but you can be arrested by federal agents.
Proposition 215, which carried California by plebiscitary vote in
1996, authorized marijuana under medical prescription. The Ninth
Circuit Court then handed down a decision denying the right to prosecutors
to pull in marijuana distributors whose clients were patients of
doctors who authorized marijuana. Last June, Peter McWilliams, the
young author, poet, libertine/libertarian, died in medical duress.
He had AIDS, and found relief in marijuana; the feds brought him
in, stuck him in jail, released him on bail-with-urine-tests to
verify that he was not taking marijuana, the only palliative that
gave him relief from pain; and he died. One doesn't die from not
taking marijuana, any more than one dies from taking it. But what
creeps into the case, of course, is the concept of medical necessity.
Justice Clarence Thomas wrote the majority opinion, which wasn't
endorsed by three of the justices, who wrote their own concurring
opinion. The reason for their disagreement was Justice Thomas's
insistence that marijuana has no unique medical purpose. This statement
is dumbfoundingly outrageous to anyone who knows from personal experience
that the drug gives unique relief to some sufferers.
What Mr. Thomas, and others, correctly did was to acknowledge the
authority of Congress as exercised in its Controlled Substances
Act of 1970. This Act decreed that marijuana was a Schedule 1 substance,
and therefore forbidden for use. The Court's indulgent handling
of Congress is a welcome deviation. Yes, Congress said it; yes,
Congress has the authority to rule on drugs; no, California distributors
may not legally sell the drugs. So where do we go now?
That question is politically and constitutionally interesting to
residents of Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon,
and Washington, which have passed laws permissive in orientation
on the question of marijuana. And it is of intense medical interest
to people suffering from debilitating symptoms of AIDS, epilepsy,
glaucoma, multiple sclerosis, and chemotherapy.
California's attorney general, who backed the Oakland cooperative,
regrets that the federal government is standing in the way of "California's
historic role as a 'laboratory' for good public policy." That statement
was a little unguarded, coming from a spokesman from a state that
has served as a laboratory for every kookiness of the past one hundred
years; but the question of states' rights is implicitly very much
there. Justice Stevens raised the point explicitly, wondering whether
the majority opinion showed enough "respect for the sovereign states
that comprise our federal union." Thomas replied witheringly to
his colleague: "Because federal courts interpret, rather than author,
the federal criminal code, we are not at liberty to rewrite it."
Correct. But inasmuch as we are talking only about one federal law,
easily modifiable, the question of political leadership arises.
And here we have a precedent. While governor of Texas, George W.
Bush opposed legalizing marijuana for medical use, but deferred
to individual states to make their own decision in the matter. "I
believe each state can choose," he said in 1999.
So then that avenue is open: a congressional modification of existing
laws.
But another window is there, the medical-necessity question. It
is already acknowledged that federal prosecutions of marijuana users
who are manifestly beneficiaries of the drug aren't going to appeal
to many California jurors. With the result? That there simply won't
be any prosecution of individual users. How will they get the proscribed
drugs, now that the cooperatives are closed down? That is a silly
question. How does anybody who wants pot get it? How did they get
booze during Prohibition?
Those who enjoy legal theorizing can come up with the argument that
to deny someone a pain-reducing or life-enhancing drug is to deny
him due process and the right to life. These are airy flights of
constitutional theorists on highs, but they do accost the basic
question whether Peter McWilliams is a better judge of medical palliatives
for his ailment than Congress or the Supreme Court.
So it all crowds around our federal system: state laws, state plebiscites,
congressional laws, Supreme Court interpretations, constitutional
epiphanies. It is very red, white, and blue and, we repeat, there
are those who love it.
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