The Court Chokes

What are they smoking? The current Supreme Court majority, the current Congress, and the current administration all would doubtless describe themselves as strict constructionists and states’-rights advocates. As in, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That’s the Tenth Amendment — the final piece of polishing applied to the Constitution by the Founding Fathers so as to ensure the proper degree of constructive local autonomy.

So why is that twice now, since the beginning of the year, these branches of government — acting singly or in unison — have gone out of their way to flout that principle? The echoes have barely begun to subside from the Schiavo case — with its egregious congressional override of the authority of Florida’s courts, aided and abetted by the Bush administration. And now we have the other branch of government, the Supreme Court itself, getting into the act of deconstructing strict constructionism with its 6-3 decision imposing a de facto federal veto on medical-marijuana legislation in the states.

What makes the court’s ruling even more troubling is that, while it doesn’t invalidate outright the state laws in question, it fails to provide any clue as to how such laws might be rewritten so as to stay within bounds of the newly defined federal writ. Indeed, the decision would make such good-faith efforts irrelevant. Eschewing the kind of clear guidelines that characterized Roe v. Wade, Monday’s ruling merely says to the states: Do as you will; we’ll override you as we see fit.

Basically, what the court did was to classify the prescription of marijuana not as a medical matter but as one having to do with interstate commerce, relegating its control to the same law-enforcement agencies — the Drug Enforcement Administration, for example — that are currently charged with the interdiction of crack cocaine. According to the federal Controlled Substance Act of 1970 — rushed into passage during a time of reaction against the easy-riding attitudes of the 1960s — marijuana in whatever form and employed for whatever purpose is illicit. So bring on the crime-busters!

Never mind that marijuana has proved in clinical trials, as well as in actual practice, to be the only palliative to which a large number of patients with a wide variety of serious ailments are responsive. The most obvious way in which its efficacy has been demonstrated is as an antidote to the hardships afflicting cancer patients undergoing chemotherapy. What Monday’s court decision does, unmistakably, is put both the prescribing physician and the suffering granny who is using the stuff in jurisdictions like California under a threat of prosecution.

We don’t know what the short-term remedy is to this state of affairs — short of hoping that the federal oversight agencies, whose scope in the matter is now both arbitrary and absolute, exercise a proper degree of restraint and caution.

In the long term, Monday’s decision makes as good an argument as any for continued vigilance — both indirectly, as voters, and directly, as duly elected representatives of the people — over future appointments to the federal judiciary.



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