The Supreme Court follows the election returns. But the court has its own stylized, slow-motion elections, as generational cohorts of justices age, retire and are replaced. “Oh, to be 90 again,” Justice Oliver Wendell Holmes said after passing a sweet young thing. There are no nonagenarians on the Court now, but there are four justices over 70, of whom two are over 80, of whom one (Chief Justice William Rehnquist) has cancer. The line to succeed them forms, conservatives hope, to the right.
In the meantime, the old court has gotten a case concerning medical marijuana.
Raich v. Ashcroft was brought by Angel Raich, a 39-year-old California woman suffering a variety of ailments, including nausea and wasting disorder, which, she and her doctors believe, only marijuana relieves. California law, like the law of 10 other states, allows marijuana to be grown and distributed for medical purposes. Ms. Raich consumes one pound of pot a year, in the form of baked goods. (Surely she derives no illicit pleasures thereby. My memory of hash brownies is that they tasted like chocolate sand.) But her regimen flies in the face of federal law defining marijuana as a controlled substance.
How does her case fit into the new federalism-the Rehnquist court’s disposition, running back to the mid-1990′s, to recognize some limits on the legislative powers of Congress? From Day 1, constitutional minimalists read the document as a list of precisely enumerated powers. But also from Day 1, more expansive souls used various clauses, including the commerce clause (“Congress shall have the power … to regulate commerce … among the several states”-Article I, Section 8), to make the enumerated powers more numerous.
The precedent for forbidding medical marijuana seems to be Wickard v. Filburn. Roscoe Filburn, an Ohio farmer, was allowed by New Deal agriculture regulations to grow no more than 11.1 acres of wheat. But one year Filburn grew 23 acres. His case rose to the Supreme Court, which ruled in 1942 that, even though Filburn’s excess production was not going to flood the markets of the Middle West, it added its ripple to interstate commerce, all local markets belonging to the web of the one vast national market. Therefore, next spring Filburn would have to plant half as much wheat.
Ms. Raich’s lawyers now ask what relevance such reasonings have to their client, since the non-medical marijuana market is illegal. How can the federal government regulate a trade that it wishes to abolish? Is it in the business of maintaining price supports for the Bloods and the Crips? Are the drug warriors hoist by their own petard?
Rolling back the marijuana laws via lawsuit is entering the great crap shoot of the modern courts. The bench where John Marshall once sat has become like the fortune-telling chicken in Chinatown. Will Nino persuade Sandra? Will Kennedy stick with Souter? Medical marijuana has had more luck at the state level. This November, Montana became the ninth state to approve medical marijuana in a referendum. (The measure won 62 percent of the vote; President Bush, who carried the state in a landslide, won only 59 percent of the vote.) Alaska, Arizona, California, Colorado, Maine, Nevada, Oregon and Washington have all passed medical-marijuana referendums. Voters in Washington, D.C., almost certainly approved such a measure a few years ago, but Congress, which runs the district’s affairs, didn’t allow the vote to be officially tallied. Two states, Vermont and Hawaii, have enacted medical-marijuana laws through their legislatures.
Why have referendums-the direct appeal to the people-been so successful? The answer is obvious. Illness is not a special interest. Most people have had, are related to someone who has had, or have known people who have had cancer, AIDS, multiple sclerosis. They know the tears of things; human transience touches them. They vote for mercy as they would for motherhood, and rightly so.
Why then are legislators, who are human too, so immune (outside Hawaii and Vermont)? The answer is equally obvious: Self-preservation is not a special interest among them. Because legislators don’t have the luxury of taking each vote in isolation, their continuing electability depends on weighing all the consequences. Voting for medical marijuana can seem like voting to take the curse off marijuana, period-thus increasing the chance that kids will use it. Illness comes and goes, but children are with you all the time, until they leave home and acquire the power to ruin themselves however they like. The pressure to give pot to the suffering seems outweighed by the pressure to keep it from the vulnerable.
Supporters of medical marijuana could help our cause with two kinds of candor. We have to be very blunt about the life situations of patients like Angel Raich-not to wring cheap tears of sympathy, but to remind everyone that disease and its treatments are no fun. It is a great blessing not to have to barf in a toilet, but no one would seek that out as a pastime. No one uses medical marijuana to get high, or to be cool. We don’t normally think of illness and hospitals because we don’t like to, but we all know what it is we are avoiding. A little frankness keeps the reality of medical marijuana in focus.
A second form of candor that would be welcome is to admit that many supporters of medical marijuana also support decriminalizing recreational use. And why not? The drug is less destructive than alcohol, which we tried to prohibit for excellent reason, and made legal again for excellent reason. But marijuana, like alcohol, can have bad effects. That is why advertising should be regulated, and use in public or by minors prohibited. But the bad effects of decriminalization will be less bad than the bad effects of prohibition now-cruelty, caprice, waste, lies and the botch of not in fact prohibiting it all that effectively.
Making these arguments in the public square will ultimately do more good than rolling the dice before the Supreme Court.