Yes, I know, the U.S. Supremes in Gonzales v. Raich (June 2005) told two women that they could not use, cultivate or possess marijuana that was prescribed by their doctors under stringent safeguards to ameliorate pain and nausea suffered as a consequence of chronic, progressive and, ultimately, fatal illnesses. After all, there were principles here at stake. And it had nothing to do with the medical use of marijuana. It had to do with the Supremacy Clause in Article VI of the United States Constitution, which says, in essence, if the federal government makes a law, the state must uphold it, even if it violates the state Constitution.
Where states’ laws conflict with federal laws, which are designed to achieve a uniform objective, the states must yield to the feds. Under the Commerce Clause of the U.S. Constitution, Congress is given the exclusive power to regulate all kinds of commerce that directly or indirectly affects interstate commerce. The specific question raised was whether the feds had the power to ban the states from enacting laws that legalized marijuana for medicinal purposes. Could the feds impose its will and enforce its laws upon the states and its citizens? “Yes,” the court said. The court was right, but Congress was wrong. Let me explain.
Congress indeed has an interest in pursuing a coherent and even-handed policy concerning the use, possession and sale of dangerous drugs throughout the land of the free. It has enacted a comprehensive drug law known as the Controlled Substances Act. (21 U.S.C. Art 801 et. seq. 1970). It purports to regulate and control the use of substances Congress rightly or wrongly has determined to be dangerous and unsafe. Further, it creates a hierarchy of schedules to which various narcotics, anabolic steroids, hallucinogens, etc. belong, attaching progressively greater controls and punishment to those drugs that have the highest potential for abuse with no attendant medical use. So, marijuana is listed as a Schedule I Drug (the most serious category) together with heroin, cocaine, opium and the like.
As you can see, Congress thinks it ought to tell people that marijuana has no therapeutic effect and therefore it must be scorned like heroin. Folks, even heroin is used in European countries to quell the terrible pain of those suffering from terminal cancer. Yet our leaders have said, “No, marijuana does not quell pain, nor alleviate nausea from chemotherapy. Why don’t you try one of those nice substances Merck, Pfizer, Glaxco, Johnson and Johnson, et al. can sell you for 900 percent-plus profit?” Yeah, that sounds fair to me.
A more courageous court might have questioned the classification of marijuana as a Schedule I Drug having no medicinal benefits for the terminally ill patient. It might have given some weight to the citizens of a state who, by referendum, had said, “We believe that under the guidance of a competent, qualified doctor, given the established need to alleviate severe pain and nausea that cannot otherwise be effectively addressed, the use of medical marijuana should be allowed in the name of humanity and common decency.”
It could have said that Congress’s classification of marijuana should be placed under Schedule II, which, while recognizing the need to control the use of marijuana, also recognizes the need to allow it to be prescribed under careful controls. It could have. It didn’t. The court could have found that homegrown marijuana, pursuant to a medical prescription, was not violative of the interstate commerce clause, since it dealt solely with an intrastate activity not covered under the commerce clause. But no, the Supreme Court justices divined that somehow growing pot in your own home related to interstate commerce. And I suppose it is. After all, if the distressed patient is using cheap homegrown pot to alleviate unbearable and intolerable pain, then he or she is unlikely to purchase pharmaceuticals delivered with gusto from your local interstate carrier to your favorite local drug supplier. And that affects interstate commerce. Ah, such names as Oxycontin, Duragesic, Demerol, Dilauded, Roxanol and Vicodin just roll off one’s tongue as Congress’s palliative drugs of choice.
Folks, I don’t mean to be dismissive of our leaders. I do not endorse the promiscuous use of recreational drugs. I do believe our government has a legitimate stake in combating illicit drug use, though arcane and excessively punitive drug laws such as the Rockefeller Drug Laws are inhumanely over the top. It’s quite simple, Congress needs to listen to the people, listen to the medical community, listen, most of all, to the human beings who are hurting, surviving, dying and trying to live out their last days with a little dignity and a little less pain.
To paraphrase J. Jenkins: “To err is human, but when the eraser wears out ahead of the pencil, perhaps Congress is overdoing it.”