A
Return to the Past: how the conservative
justices legalized marijuana
Introduction: political concerns, legal questions
A fair proportion of the American public openly questions our drug laws and the War on Drugs.[1] Though a range of opinion exists, there is a growing consensus of public opposition to
penalties against simple marijuana
possession (Stein 2002, 57-58). In 2002,
a number of states entertained laws to decriminalize or change marijuana laws
(Stein 2002). Further twenty-seven
states and the
Of these states,
perhaps most well-known, and the center of a pitched legal battle, is
How is it possible that what appears to be legal and authorized action, marijuana production, supply and use for medical purposes, is subject to criminal penalty? The answer lies in the particulars and wonderment of American federalism. Though individual users, patients, suppliers and doctors might believe they are shielded by California state law (DRC 2003a), federal courts have ruled that federal prohibitions on drug possession, manufacture, and distribution under the Controlled Substances Act of 1970[3] supercede state law grants. But there is reason to see a silver lining in the storm clouds of injustice brought on by the Drug War. By analyzing case holdings and legal opinions on federalism, drugs, privacy, and fundamental liberty, one can make a coherent argument – using the logic of the so-called conservative justices – in favor of medical marijuana specifically, and perhaps outright drug legalization.
For over thirty
years courts have held that the CSA is a Constitutional exercise of federal
power under the so-called interstate commerce clause (ICC), Art. I, § 8, cl. 3
of the
In August 2003, in
Santa Cruz et al v. Ashcroft, a
federal district court judge in
A brief history of
Federal laws
designed to restrict recreational or ethnic drug use did not emerge in until
the early 20th century (Shafer Commission 1972; Jones 2003).[8] Such laws were actually “tax” codes,
regulating drugs in a circuitous route.
Until 1970, the two dominant federal drug/tax laws were the Harrison Act
of 1914 and the Marihuana Tax Act of 1937.
These laws stood until 1970 when Congress, reacting to the Supreme Court
decision in Leary v.
Given the present federal regime, where the CSA was written expressly and functions as an overt criminal prohibition on drugs (and even prohibits intent to possess imitation controlled substances), why did the first 55 years of American federal drug control employ tax language? According to Whitebread (1995), legal scholars, legislators, and judges of early 20th century believed that, as articulated in the United States Constitution, Congress lacked the power to pass a national criminal law or regulate medical practices.[9] Most lawmakers and importantly jurists of the late 19th and early 20th century recognized that state governments had sole authority of police power and hence exclusive right to regulate medicine as a matter of promoting public health, safety, and welfare (Whalin 1999). Appreciating the limits of federal jurisdiction then, members of Congress understood they had the power to control, regulate, and tax all international and interstate commerce. Hence as a matter of constitutional authority, federal prohibitions on drugs needed to take the form of a tax regulation, not a criminal one.[10] In fact, the radical tax scheme of the Harrison Act followed the ratification of an equally ground breaking move by Congress when it adopted the Sixteenth Amendment that allowed for the imposition of a federal income tax.[11]
The Harrison Act sought to control those who dispensed and used three drugs – opium, morphine and cocaine. Depending on the ultimate use of the substance, for either medical or non-medical purposes, the act created de facto criminal penalties against the improper import and disbursement of opium, coca, and their derivatives.[12] I say de facto because the law was not a de jure criminal code – there were no prohibitions on possession, manufacture or sale per se. Under the Harrison Act doctors, pharmacists, and other professionals were required to pay only one dollar per year for a government stamp that allowed them to import, buy, sell, and prescribe forms of opium, coca, and their derivatives (Belenko 2000). Non-professionals, who could not obtain the right to pay the tax, faced a fine up to $2,000 for each unauthorized or de jure non-medical transfer of these drugs.[13]
In the wake of the adoption of the Harrison Act, federal agents sought to enforce a general police power – in keeping with the spirit if the law. However the general principle that the Federal Government had limited authority to regulate drugs through some plenary fiat was borne out as early as 1916. In United States v. Jin Fuey Moy[14] the Supreme Court held that the Federal Government could not criminalize mere possession of opium by any person through allegation that a possessor did not possess federally issued opium tax stamps. The Supreme Court upheld a demurrer holding that: (1) without a showing that a possessor had come into possession through an act of international or interstate commerce, the Federal Government had no jurisdiction and could not try or convict someone for mere drug possession (Bonnie and Whitebread 1974, 20); and (2) the act only applied to persons who were required to register – doctors and pharmacists – not every person in the United States (Belenko 2000, 68-70).[15]
Though one
prosecution under the Harrison Act was avoided, the Supreme Court was not
willing to strike the law entirely.
Another criminal defendant challenged the Harrison Act arguing it was
truly a police measure dressed up as a revenue act in United States v. Doremus, 249 US 86 (1919). Though the Court acknowledged that the
Congress could not exercise laws of general police power, which was wholly
reserved the States, it upheld the Harrison Act holding that [any] legislation
with “some reasonable relation to the exercise of [federal] taxing authority…
cannot be invalidated because of its supposed motives” (Belenko 2000, 71-73).[16] What was remarkable about Doremus is that Supreme Court was not
willing to allow “police power by another name” in other cases. The United States Supreme Court invalidated a
Harrison-like “penalty” taxes as applied to goods made with child labor. In Hammer
v. Dagenhart, 247
Another
significant ruling in drug law that might apply to present-day concerns for
medical marijuana and federal interference with powers reserved to the States came
in 1925. In Linder v. United States, 268
Despite these cases, federal regulation and control of opium and coca become well accepted (Lindesmith 1965, 12-13). Generally doctors feared legal repercussions of treating addicts and they quit the business of prescribing drugs to addicts (Belenko 2000, 90-91; Gray 1998, 88). Federal prosecutors and courts ignored the Linder ruling (Gray 1998, 86-89). The probably relied on the precedent of United States v. Behrman, 258 US 280 (1922) which upheld a conviction of a doctor on the grounds that the physician, Behrman, prescribed too many doses of cocaine and morphine to an addict. In short time, federal legislators moved to outlaw marijuana. Pressure to draft and impose federal regulations on marijuana from the petroleum, wood-pulp/paper, and cotton industries notwithstanding (Jones 2003), a strong national PR campaign was necessary to demonize marijuana and its non-White users, and purportedly criminally savage users (Himmelstein 1983, 57-58; Gray 1998).
Federal agents rightly understood that they were unable to control marijuana in any way, its use, possession, manufacture or sale, save overt interstate and international commercial shipments of the drug itself. In fact, the anti-marijuana propaganda film “Reefer Madness” of the 1936 makes direct reference to the limits of federal authority. In the movie, a distraught school principal goes to a local FBI agent and asks for help against the “deadly narcotic.” The sympathetic agent complains that he knows of numerous incidents where marijuana led young men to kill and young ladies to commit improper sexual acts. Nevertheless the agent complains that the Federal Government cannot intercede as there is no interstate traffic in the drug. Facing a constitutional proscription on federal efforts to police marijuana and public “ignorance” of the “assassin of youth” (Anslinger 1937), the director of the Federal Bureau of Narcotics and Dangerous Drugs, Harry Anslinger, traversed the nation lobbying state legislatures to adopt a uniform act against marijuana.[19]
Between 1914 and 1937, several states and cities passed laws against marijuana.[20] El Paso, Texas, established the nation’s first marijuana law in 1914 as the drug was “common among Mexicans, Negroes, prostitutes, pimps, and a criminal class of Whites” (Smith 1917).[21] Other places across the nation used the law as a tool of ethnic discrimination (Gomila and
Lambow 1938; Whitebread 1995). A Texas State Senator said, “All Mexicans are
crazy, and this stuff (marijuana) is what makes them crazy” (Whitebread
1995). In 1929, during floor debate on
The passage of federal laws against opium in 1914 and 1924 prepared the public to adopt an attitude which associated opium addicts with marijuana and in turn deviance (Taylor 1969, 32; Gray 1998). Especially deviant at the time was jazz music, its African/Negro roots, and the improper and immoral passions it sparked in White women. As Presidents Coolidge and Hoover, among others, sought to control the immoral passions inflamed by jazz, the Negroes who played it were also targeted for their vice of smoking marijuana (UKCIA 2003).
By 1936, newspaper and
wood pulp magnate, William Randolph Hearst, was mounting a national campaign
against marijuana (Himmelstein 1983, 57-58).
His newspapers ran headlines like “Marihuana [sic] Makes Fiends of Boys
in 30 Days,” “Hasheesh [sic] Goads Users to Blood-Lust,” and “Killer Weed from
Using the tax
model of the Harrison Act, in 1937 Congress drafted a bill to regulate
marijuana. The bill called for registered
persons to pay a $1 tax per transfer for every ounce sold. Non-registered persons were required to pay $100
per ounce for each transfer (Nixon Commission 1972, appendix part three).[23] In congressional hearings that year, three
people spoke about marijuana, its effects, medical uses, and federal efforts to
control its traffic. First to speak in
favor of legal restrictions was FBNDD head Anslinger, the bill’s principal
proponent (Whitebread 1995). Relying on
the unsubstantiated claims of
Soon after the Marihuana Tax Act (MTA) was adopted, and the Federal Government asserted marijuana to be dangerous, the FBNDD was looking to make arrests. In short time Anslinger’s agents had prosecuted more than 3,000 AMA doctors for “illegal prescriptions” of cannabis (ParaScope 1998). By 1939, the AMA had halted its dissent on the marijuana issue. Thereafter only three doctors were prosecuted for prescribing cannabis-derived drugs (ParaScope 1998).[26]
Through the MTA and its amended versions like the Boggs Act, the Federal Government continued to prosecute marijuana possessors until 1969. Convictions under the MTA were halted in 1969 when the Supreme Court struck the MTA as unconstitutional in overturning the conviction of Harvard professor Dr. Timothy Leary for marijuana possession and importation.[27]
Under the MTA, recreational users like Leary were denied the right to possess marijuana lawfully. That is, as “unregistered persons” they were required to pre-pay the $100/oz. transfer tax to the IRS prior to obtaining the drug. But as unregistered persons, said taxpayers would not receive drug stamps to authorize valid marijuana possession. Furthermore once a non-registered person attempted to secure drug stamps, that were not available to them, the IRS would turn over information of the request and tax payment to criminal law enforcement authorities.[28]
The Supreme Court found that the MTA tax (and its reporting) scheme violated Fifth Amendment protections of due process and against self-incrimination.[29] That is, the “registration” system meant that anyone who paid the tax was admitting, according to the Executive branch, that they either possessed or intended to possess marijuana, e.g. committed or would commit an unlawful act. Given the catch-22, the Court found that one could refuse to pay the tax through invocation of the Fifth Amendment privilege against self-incrimination.[30]
As the Court denied federal authority to impose the farcical tax law, the MTA was moot. The Congressional reaction to the decision was remarkable. Instead of concerning itself with Constitutional prohibitions on federal police power, Congress drafted and passed a plain and simple criminal law, the 1970 Controlled Substances Act (CSA). The law is brash in constitutional terms as it usurps State police power and it makes no reference to regulating interstate or international commerce, or any other provisions of Art. I § 8 of the Constitution, as is the standard practice.
Though Congress
passed the CSA, the question remains, does Congress have authority to pass a
criminal law on mere drug possession? No
federal act is legal if such act is (a) not in pursuance of a specified power;
or (b) specifically prohibited in the text of the Constitution.[31] Put simply, the Federal Government is one of
enumerated, not inherent powers (Nowak and Rotunda 2000, § 3.1). In addition, as a rule, the Federal
Government cannot act for the general welfare of the populace – e.g. a general
criminal law (Nowak and Rotunda § 3.1).
“Under our federal system, the States possess primary authority for
defining and enforcing the criminal law.”
United States v. Lopez, 514
In reference to drug
regulation, the most relevant question centers on the enumerated power of
Congress to regulate interstate commerce.
The meaning of the phrase “commerce between the states,” from Art. I §
8, cl. 3 of the Constitution, has been the object of evolution, revolution and
revision for nearly 200 years. The idea
of what constitutes ICC expanded to the point whereby in the late 1930s the
Supreme Court upheld federal regulations that controlled purely intrastate
employment contracts.[32] And by 1975, the Court held that Congress
could regulate purely intrastate
commerce.[33] Nonetheless even early Federalists like John
Marshall, writing in Gibbons v. Ogden,
22
This new doctrine, announced in Lopez and later refined in Morrison
(infra), is significant to the
federal War on Drugs, because Lopez
has reined in what had been judicial license that heretofore permitted Congress
to regulate any activity that affected commerce. See
One could understand such license as stemming from a
liberal reading of the necessary and proper or “sweepings” clause, Art I, § 8,
cl 18. Though proponents of a strong
central government favored such, as in McCulloch
v. Maryland, 17
Though court approval for ever-expanding federal power grew for decades from the 1930s onward, with the 1990s and the imprimatur of two sets of cases, a new doctrine is emerging. One set of commerce cases started with Lopez (1995) and continuing in United States v. Morrison, 529 US 598 (2000). The other set grew from decisions on state sovereignty, cases like Seminole Tribe (1996) and Printz (1997). Holdings and opinions of these cases stand for the proposition that, in the context of medical or personal marijuana, when the activity is conducted either outside the milieu of commerce or its instrumentalities, or by state agents, Congress has no authority to exercise police power and impose general criminal restrictions.
Understanding the significance of Lopez
and Morrison
The drafters and signers of the U.S. Constitution expressly rejected the idea of vesting Congress with national police power (Barron and Dienes 2003, 70). Significantly within the topic of drug law and regulations on possession (use), sale and distribution, the Constitution does not grant the Federal Government with the authority to regulate health, safety, welfare and morals (Barron and Dienes 2003, 70). Congress has no power to construct general criminal laws.[35] See Nigro v. United States, 276 US 332 (1928) (McReynolds, J. dissenting).
Given congressional understanding of their authority and grant, nearly every federal criminal law makes a reference or claim to interstate commerce and Art. I § 8. Such occurred in the early 1990s when Congress passed a law that banned gun possession near schools. Written as § 922(q) of title 18 of the U.S. Code, the law was to be an instrument aimed to stop drug dealers and gang members who would prey on youth and disrupt neighborhoods. But in Lopez (1995) a closely divided the Supreme Court rejected the law insisting that, among other problems with the statute, Congress presented no evidence that mere gun possession per se had a substantial affect on interstate commerce (Barron and Dienes 2003, 79). So it was that the Supreme Court set some guidelines as to the meaning of Art. I § 8, cl. 3 and began to limit Congressional authority to establish criminal penalties for purely intrastate activity. United States v. Lopez, 514 US 549 (1995).
According to the
Court, of note in Lopez was that
Congress tried to regulate non-commercial activity, handgun possession, that
had no prima facie effect on
interstate trade or travel (Barron and Dienes 2003, 79). Barron and Dienes add that the court saw the
law as improper because the federal hand-gun law sought to regulate activities
traditionally allocated to the states – like education, family law, and
criminal law, aka health, safety, welfare and morals (80). Writing for the majority in striking § 922(q),
Rehnquist explained that to support the notion, as the Federal Government
preferred, that all activity has a substantial effect on commerce, would allow
federal regulation in any milieu of life, including those where the States are
sovereign. Cf. Lopez. That is, Rehnquist
implicated precisely the criticism of
Nowak and Rotunda (2000) writing before the Morrison decision, argued that since Lopez, the Supreme Court has determined that federal regulations aimed at single-State activities (those that do not cross State lines) which also are not commercial in nature, will only be upheld as proper exercises of federal commerce power if there is a factual basis, e.g. congressional finding that the activity has a substantial effect on interstate commerce (Nowak and Rotunda § 4.1). Five years later, through his dissent in United States v. Morrison, 529 US 598 (2000), Souter distilled the now preferred rule from Lopez.
“Art. I § 8, enumerates the powers of Congress, …implying the exclusion of powers not enumerated. … Such exclusions [occur] when the activity regulated is not itself commercial or when the States have traditionally addressed it [through their] exercise of the general police power... [not previously] extended to Congress under the Constitution. Cf. Lopez, 514 US at 566 (1995).
The Lopez ruling seemed limited, as the Court seemed to insinuate that it would defer to Congress if the legislature were to show a nexus between the non-commercial activity regulated and a substantial affect on interstate commerce. The nexus argument seemed parallel to the rational basis test often employed when courts consider the constitutionality of laws generally.[36] What is of note here is that the dissent in Lopez criticized the majority that overturned the federal hand-gun law, 18 USC § 922(q), for failing either to consider the rational basis for the law or to apply a rational basis test, justices Rehnquist, Kennedy, Scalia, and O’Connor, much less Souter, Steven, Ginsburg, and Breyer are usually quick to do.[37] Instead of isolating Lopez as a unique case, however, with Morrison the majority would send a clearer sign about its preferences to limit and curb authority.
In 1994 the
Congress passed and
The Supreme Court felt comfortable in striking down VAWA because the act: (1) was not aimed at commercial activity; and (2) sought to infringe upon an area of law traditionally handled by the States, to wit: common law torts. Specifically a State-law remedy already existed for women, like Brzonkala, who claimed to have suffered a sexual assault and or rape.[38] The Court also felt uncomfortable with extending the jurisdiction of federal courts where the Constitution did not allow it expressly. But perhaps most important for this new line in jurisprudence was the Court’s rejection of federal attempts to legislate where there was “a mountain evidence about the substantial economic effects of domestic abuse and its ties to interstate commerce” (cf. dissent of Souter in Morrison).[39] The Court held that evidence of an activity’s effect on interstate commerce was not sufficient justification to overcome the lack of overt federal authority to enact the legislation – especially when the target of the regulation was not commercial in nature.
Maybe the most telling line from Morrison rests in the concurrence of Justice Thomas. In a short and succinct statement he wrote:
The majority correctly applies our decision in Lopez (1995). I write separately only to express my view that the very notion of a “substantial effects” test under the Commerce Clause is inconsistent with the original [framers’] understanding of [Congressional power]. By continuing to apply this... standard... the Court has encouraged the Federal Government to persist in [the] view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence... we will continue to see Congress [attempt improperly to appropriate] State police powers under the guise of regulating commerce.
Through his plea or declaration, we see that Thomas favors a strict interpretation of the Constitution, and a present majority believes that there is a bright line between federal commerce power and state police power.
In
fact, building on the Lopez-Morrison
rationale, the Court struck another federal crime law drafted under the
supposed auspices of Art. I § 8, cl. 3.
In Jones v. United States, 529
US 848 (2000), the Court struck a federal statute that permitted federal
prosecution for the act of arson committed against any building funded,
financed, or built in whole or part through instruments of interstate commerce
(Barron and Dienes 2000, 81). Given the
Court’s desire to return to strict federalism and the framers’ intent – recall
With this latest line of cases then, present federal law, 21 USC § 844(a) which makes mere marijuana possession a federal crime without any relation to commerce looks unconstitutional. And with the current court’s positive view on an older line of jurisprudence, it may be also that § 841(a)(1) of the CSA reading “[it is] unlawful for any person to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense [a controlled substance]” is unconstitutional as an improper exercise of general police power.
Consider, in Whipple v. Martinson, 256 US 41 (1921), the Supreme Court explicitly recognized the authority, if not exclusive nature, of State police power over the regulation of drug and medical practices.
“There can be no question of the
authority of the State in the exercise of its police power to regulate the administration,
sale, prescription and use of dangerous and habit-forming drugs... The right to exercise this power is so
manifest in the interest of the public health and welfare, that it is
unnecessary to enter upon a discussion of it beyond saying that it is too
firmly established to be successfully called in question.” Whipple, 256
Even when recognizing the Court’s allowance for federal control over interstate commerce, when read in Lopez-Morrison context, Whipple stands for the proposition that the Federal Government can take no role to interfere with or police intrastate medical practices.[40]
Though there is a clear and coherent, if not preferred, legal argument to overturn 21 USC § 844, this is probably not enough to employ the power of the courts to stop the federal Drug War. There is still the problem of production or manufacture, i.e. “getting your stash.” Under the instrumentalities or stream of commerce logic (Barron and Dienes 2003, 73) – still upheld by a slim majority, Justice Thomas’ admonitions notwithstanding – any manufacture of marijuana, opium, coca, or other controlled substances, carries with it the idea that there was some commerce like buying and selling potting soil, lamps, seeds, etc.[41] Unless the Leary-type rationale holds, that the Federal Government has the burden to prove that one did not grow their own – made with local/wild seeds and plants, with natural sunlight, rain or well water and so on, the possessor can be charged with numerous felonies under the CSA including intent to manufacture and distribute. The latter verbs used, by the courts, to imply commercial activity. Hence it maybe that State officials must produce and supply marijuana and other drugs to their citizens.[42]
Still it appears that State and City officials, or their designees, may be allowed to produce and supply medicinal, if not recreational, marijuana (and hence all other drugs) for two reasons. First current federal law provides State officials with immunity from CSA offenses.[43] Secondly, the Supreme Court has carved out various rules in re the limitations of the federal commerce power to regulate State and local governments (Nowak and Rotunda § 4.1).
At present, chapter 21 USC § 885(d) of the federal code provides immunity for State, local and other officials who could otherwise be charged with CSA violations. The pertinent part of § 885 holds,
“no civil or criminal liability shall
be imposed by this subchapter upon any duly authorized officer of any State,
territory, political subdivision thereof, the
Current rulings of lower level federal judges notwithstanding,[44] when acting in accord with their duties then, state designees should be able to distribute drugs and remain free from federal criminal indictments in ways that private citizens cannot. Of course, federal judges could return to the rationale of Webb (infra at note 50) and allow prosecutions or Congress could repeal § 885(d) and its immunities. The latter is most unlikely for it would cause an uproar given the current proclivity for state and local police to engage in lucrative sting operations (Gray 1998; Jones 2003). But even if § 885(d) were erased, the immunity should remain.
States and their governments are sovereign. States existed prior to and remain distinct political entities, independent from the Federal Government, save that part of their sovereignty that they have surrendered via ratification of the United States Constitution and its amendments (Barron and Dienes 2003, 97).[45] The key notion here is that the Federal Government cannot abrogate or strip state sovereignty unless specifically noted in the Constitution.[46]
In the context of
federal police actions, Congress cannot draft and no court may enforce federal
attempts to compel state and local government officials to act.[47] This principle was stated unequivocally in Printz v. United States, 521
Nowak and Rotunda see the rationale of Printz as reliant in part, on the 10th Amendment. They also insist that State and local immunity is limited and does not apply to federal regulations over commercial activity (Nowak and Rotunda § 4.10). In this sense, State officers have cannot be compelled to enforce the CSA. But can they be held liable, criminally, for violating the CSA? Or do state officers possess immunity from prosecution of a federal criminal statute that does not regulate commerce, as understood by the Lopez-Morrison rationale?
In United States v. Gillock, 445 US 360 (1980) the Supreme Court allowed the prosecution of a Tennessee State legislator, accused of violating federal laws against obtaining money under color of official right (18 USC § 1951), using an interstate facility to distribute a bribe (18 USC § 1952) and racketeering (18 USC § 1962). As the high court overturned lower court grants of privilege (immunity from prosecution) to the legislator, the majority held that “the judicially fashioned doctrine of official immunity does not reach so far as to immunize criminal conduct proscribed by an Act of Congress.” Gillock at 373. But to be sure, the criminal charges in Gillock tied both to economic crimes – bribery – and interstate activity. That is, Gillock did not address crimes and legal principles that Lopez, Morrison and their progeny now claim to be outside federal regulation, those which are “not commercial or which the States have traditionally addressed [through an] exercise of the general police power.” As well, though Gillock allowed a federal prosecution of a State official to go forward, Chief Justice Rehnquist dissented.
Lastly one more
lesson from Gillock should explain
why State agents, like those deputized medical marijuana providers in
According to the Court there was no legitimate interest of the Federal Government at stake that was furthered through VAWA and the Congress could only claim, through its hearings, that the law would provide “speculative benefits” to persons suing in federal court. Morrison. And surely, the right of a person to sue in federal court over a claim of domestic abuse, provided no material or economic benefit to the federal government. Recall the present Supreme Court majority recognizes that state government possess general police power and is properly endowed with authority to exercise laws in order to protect the health, safety, and welfare within their jurisdiction (Nowak and Rotunda § 3.1). Accordingly there should be no fundamental compelling interest that would allow the Federal Government to overcome its Art. I and 10th Amendment limits to enforce the CSA generally or in the particular as applied to medical marijuana patients.[48] And the rulings of Printz, Lopez and Morrison bolster the idea that the Court will not impose a burden on the States to demonstrate their tangible benefits. Now, with the pronouncement in Morrison, it is the Federal Government that has the burden to show how its regulation of non-commercial activity is vital and compelling regardless of the national economic impact of said activity.
Individuals – receiving due process, with privacy and liberty to all
We have seen how the CSA may be ruled unconstitutional as an improper attempt by the Federal Government to exercise general police power. As well, State agents should have immunity from federal prosecution and be able to distribute controlled substances as a function of providing for the health, safety, and welfare of the citizenry. Other legal justifications to permit individual drug use, despite federal statutes, center on classic arguments about individual freedom. These questions of drug use as a fundamental right or liberty are connected to one’s right to medical treatment, religious expression, and personal freedom.
Accepting the claims of Nowak and Rotunda § 3.1, no federal act is legal if such act is either (a) not in pursuance of a specified power; or (b) specifically prohibited in the text of the Constitution. In order of the following discussion, of import here are the Supreme Court holdings that have found individual liberties and right outweighed exercises of federal power in the Fifth, Ninth, and First Amendments of the Constitution.
Drawing of the language of the Supreme Court, an individual can argue they are free to use medical marijuana without federal interference as an entitlement of due process or equal protection.[49] Over the last 30-35 years, the Court has made consistent rulings about bodily integrity, which includes a fundamental right to treatment, and the absolute and private nature of the doctor-patient relationship where the government cannot intrude.[50] As applied to ward off federal intrusion, these protections have been found, generally, as growing out of the Fifth and Ninth Amendments.[51]
The relevant clause of the Fifth Amendment states: “nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The clause of the Constitution is also known as the Due Process Clause. The Supreme Court has long held that, in addition to the specific protections in the Bill of Rights, the liberty protected by the Due Process Clause is not limited and the concept includes: marriage, Loving v. Virginia, 388 US 1 (1967); having children, Skinner v. Oklahoma, 316 US 535 (1942); educating one's children, Meyer v. Nebraska, 262 US 390 (1923); marital privacy, Griswold v. Connecticut, 381 US 479 (1965); contraception, Eisenstadt v. Baird, 405 US 438 (1972); and non-commercial sex by consenting adults, Lawrence and Gardner v. Texas (2003). As well in Glucksberg, the majority noted that “the [due process] clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.”[52]
In regards to medical marijuana then, due process, as fairness, would guarantee medical patients equal protection of the law. The Federal Government must allow a person access to medical treatment and enjoy medical privacy as it grants these protections to other patients. This idea draws upon the reasoning in Washington v. Glucksberg[53] and also touches upon cases dealing with medical procedures, abortion, personal autonomy over the body, use of contraceptives and the “right to privacy.”
Siding with the majority, yet offering their concurrence, four justices in Glucksberg made reference to a person’s fundamental right (or what should be called “absolute freedom” from governmental interference) to receive medical treatment for pain and exercise autonomy over the body. A patient who is suffering a terminal illness and experiencing great pain has no legal
barriers to obtaining medication. Glucksberg at 736-737, O’Connor concurring. Avoiding intolerable pain is a fundamental right. Glucksberg at 745, Stevens concurring. And, personal liberty includes one’s freedom to determine what shall be done with their body in relation to one’s medical needs. Glucksberg at 777, Souter concurring.
What
I find most significant from the Glucksberg
opinions is that while the majority would not reject
with such treatment. “There is no dispute that dying patients … can obtain palliative care, even when doing so would hasten their deaths.” Glucksberg at 736-737.[54] If the government has no compelling interest in preventing medical care that is certain to hasten death, there can be no government interest in saving one from less efficacious, yet non-lethal treatments, i.e. smokeable marijuana.
Of further import is that the government goal of “preventing addiction” cannot suffice to justify federal intervention. This point is significant because it defeats the logic of marijuana’s current Schedule I status – as a substance that is highly addictive and without medical purpose. So-called addiction to prescription drugs is common (Shafer Commission 1972; Peele 1985), but the threat of addiction is immaterial in re a patient’s right to medical treatment according to the Supreme Court. Glucksberg.[55] Lastly, as currently practiced and enforced, the CSA denies patients access to their medicine via Congressional fiat. Court adherence to statutory prohibition of a guaranteed liberty – access to medical care and medical privacy – as dictated by the Congress is unconstitutional. Cf. Christians v. Crystal Evangelical Free Church, 141 F3d 854, 860 (CA8 1998).
Oregon v. Smith and RFRA – as federal protection of religion and
ganja
If not a question of personal liberty qua medical privacy, marijuana use is
legal in much of the
The federal legislature may not legislatively supercede [the Court’s] decisions [in] interpreting and applying the Constitution. United States v. Dickerson, 530 US at 437. Further, Congress may not pass laws to remove guaranteed liberties and rights. However the legislators may create statutes that provide additional constitutional protections. Christians v. Crystal Evangelical Free Church, 141 F3d 854, 860 (CA8 1998). And in at least one regard to drug use, Congress has done just that.
After the surprising Supreme Court decision in Employment Division of Human Resources of Oregon v. Smith (1990)[56] a coalition of Republicans and Democrats drafted and passed the Religious Freedom Restoration Act (RFRA). In RFRA the Congress announced both significant “findings” and made express provisions to protect free exercise of religion. Relevant parts of 42 USC § 2000bb(a) declare:
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
Though parts of RFRA have been ruled unconstitutional as applied to the States – namely as an intrusion of State sovereignty – the law still applies to the Federal Government.
Under
RFRA the Federal Government may not burden free exercise, or if it does, may
only do so by employing the least restrictive alternative possible. A statute burdens the free exercise of
religion if it “puts substantial pressure on an adherent to modify his
behavior.” Thomas v. Review Board of
The conflict between RFRA and parts of the CSA has entered a federal court. In Guam v. Guerrero, 290 F3d 1210 (CA9 2002) the appeals court held that, under the right circumstances, RFRA bars federal prosecution for simple drug possession.[57] The court allowed the prosecution to go forward with a charge of drug trafficking against a Rastafarian who allegedly brought marijuana to the island of Guam via airplane (290 F3d at 1222-1223), but the court also examined the text and purpose of RFRA to explain how it limits the CSA.
According to Guerrero, RFRA “requires that a law that works a substantial burden on an individual’s ability freely to exercise his religion must be justified by a compelling government interest and achieve that interest by burdening as little religious freedom as possible.” 290 F3d at 1218-1219; 42 USC § 2000bb-1(b). Overtly RFRA re-establishes the Sherbert standard that the Supreme Court supplanted in Employment Division of Oregon v. Smith, 494 US 872 (1990). Congress said so in declaring the purpose of enacting RFRA:
“to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US 398 (1963) and Wisconsin v. Yoder, 406 US 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and to provide a claim of defense to persons whose religions exercise is substantially burdened by government. 42 USC § 2000bb(b).
Beyond the pronouncements of Congress in RFRA, and its command to federal courts as to what test to use when evaluating the propriety of the law, 42 USC § 2000bb-1 explains exactly when and where the government can interfere with free exercise. Moreover the government has the burden to prove its compelling interest when interfering with free exercise of religious drug use. Laying out the exception § 2000bb-1 says:
(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) [the government action] is the least restrictive means of furthering that compelling governmental interest.[58]
The provision of RFRA, 42 USC § 2000bb-1(b), coupled with past rulings in Lopez, Morrison and Lawrence and Gardner v. Texas (infra) means that the Federal Government cannot meet its compelling interest burden as to justify interference with religious drug use. The Federal Government cannot have a compelling interest in prohibiting marijuana use or simple drug possession – when practiced by adults – for such is not a commercial activity per se and the Federal Government has no plenary police power to regulate drugs especially due to the fact that said power was traditionally reserved for States as an exercise of their police power.
Re-considerations of
absolute individual liberty
Though
legal arguments are available for medical and religious use of marijuana,
peyote, etc., a reconsideration of classical liberal arguments and ideals is
perhaps, the strongest justification for unconditional recreational drug use by
adults. In Ravin v. State, the Alaska Supreme Court held that under the Alaska
Constitution and the State’s more expansive meaning of liberty and privacy, an
adult could possess up to four ounces of marijuana in the home.[59] Just recently Ravin was upheld and affirmed, despite supposed Alaskan
constitutional prohibitions against marijuana possession. In Noy
v. State (2003), the
Until
August 2003, the State of
clear pronouncements on the limits of federal law and the expanse of the idea of personal liberty. What we should note is that the arguments the Court presented to reject the Texas law closely paralleled those used by the Alaskan Supreme Court in upholding the freedom of adults to possess and use marijuana in the home.
In Lawrence the majority listed approximately seven distinct, yet related, reasons as to why the Constitution protected individual liberty in the form of private, consensual, non-commercial, adult homosexual conduct. They were:
(1) no compelling interest in criminalizing it;
(2) the need for the state to protect individual liberty;
(3) because the type of individual liberty that the Constitution binds the government to protect includes, among other things, private intimate relationships, defining the meaning of existence and the universe;
(4) the law violated the principle of equal protection;
(5) the law per se attaches social and legal stigma to otherwise legal and what should be protected behavior;
(6) a law that convicts persons for such activities leaves the convicts to suffer restrictions of other privileges and liberties; and
(7) popular opinion supported its protection.
We can look at each one of these arguments in turn and substitute drug use for homosexual conduct and reach a similar conclusion about the inappropriateness of federal and State laws that restrict and punish recreational drug use.
The Court’s
condemnation of
Given the Court’s
understandings – that there is no state interest in preventing PACNCB, its next
step was to see such activity as an expression and part of one’s liberty. At the heart of liberty is the right to
define one’s concept of existence, of meaning, of the universe, and of the
mystery of human life.
The
Court held that the
The parallels to the world of private, adult, recreational drug use are multiple. Federal reports show that Blacks and Latinos suffer far disproportionate numbers of arrests and convictions for cocaine offenses.[63] Through the 1990s over 90% of all prison commitments for cocaine offenses were Black and Latino, while over 38% of all cocaine users were White (Duster 1997; Tonry 1995). In the area of marijuana we also have disparities with non-White and poor youth suffering higher penalties while affluent and White defendants are allowed to enter treatment (Jones 2001) or suffer no jail time (Tonry 1995; Jones 2003).
As legal matters of either equal protection or fundamental liberty, the state allows private drunkenness. Private alcohol use is even permitted for minors under a guardian’s care and or in a religious settings.[64] Similarly religious use of, the supposedly harder hallucinogen, peyote, is codified in federal and state law, e.g. 42 USC § 1996a.[65] Nevertheless, while tacit social approval exists for the opiate “addict” who admits to having a problem, e.g. Rush Limbaugh and his enjoyment of/torment from Oxycontin (Borden 2003), the heroin user is stigmatized (Maris 1996). The social rejection of latter is unwarranted when viewed from pharmacological and or medical perspective if only because the body reacts to opiates – in whatever form – the same way (Peele 1977; Borden 2003) and less than two percent of all users find opiates enjoyable (Kaplan and Weider 1974).[66] More significantly there is no greater or less likelihood of one being addicted to a drug, be it opium, cocaine, marijuana or tobacco, based upon the method of ingestion (Gold 1993; Rado 1993; Koob 1998). The analogy to the liberty afforded sexual conduct then would be heterosexual activity is no better than homosexual gratification or masturbation per se. And thus, as the state has no business interfering with certain types of noncommercial private sexual conduct, it cannot criminalize some types of private drug use – that are no better or worse than any other – while allowing tobacco use, excessive alcohol consumption, etc.
Under
the
Lastly
the precedent from Bowers (holding
there is no constitutional right to engage in homosexual sodomy) was overturned
because the
Again we can take these same legal principles and historical facts to strike the CSA. There has not been a long tradition of national abhorrence to drug use, rather a long history of racially biased drug laws and racially motivated prosecutions (Taylor 1930; Bonnie and Whitebread 1974; Whitebread 1995; Jones 2003). And the laws were and are hardly neutral condemnations of immoral behavior. Rather at their inception American drug laws associated non-Anglo and Protestant ethnic groups as immoral and then assigned criminality to their cultural practices (Brecher et al. 1972; Tonry 1995). Ironically surveys show that most Americans people reject criminal penalties for marijuana use (PRC 2001) and many states have either adopted some provisions for medical marijuana and or eliminated criminal penalties for certain drug offenses.
The decisions, rationales, and logics handed down in Ravin, Noy, and Lawrence and Gardner v. Texas are not reckless scribblings of liberal judges who invent “rights” out of whole cloth. Rather they represent a return to an honest understanding of the Constitution and imagined and drafted by Madison, Hamilton, and Jay – the document’s authors. According to Nowak and Rotunda (2000), the text of the Ninth and Tenth Amendments imply that the actions of the Federal Government are subject to limitations in the specification of federal powers. In colloquial terms, “if it ain’t written down, Congress cain’t do it.” Simultaneously, the amendments acknowledge the existence of individual liberties (Nowak and Rotunda § 3.1).
Constitutional
scholars need not rely on recent judicial interpretations to make such
declarations. In “Federalist #84” one
author of the Constitution, Alexander Hamilton, railed against the call for a
Bill of Rights and explained that such was completely unnecessary, if not dangerous,
for the Constitution granted the Federal Government only limited powers – those
clearly expressed its original articles.
[B]ills of rights are, in their origin, stipulations between kings and their subjects… such was Magna Charta… the Petition of Right assented to by Charles I… and the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688… It is evident that [Bills of Rights] have no application to constitutions professedly founded upon the power of the people [where the representatives are to be their servants]. [With our Constitution] the people surrender nothing; and retain every thing.
I go further, and affirm that bills of rights… are not only unnecessary… but even dangerous. They would contain various exceptions to powers not granted; and would afford a colorable pretext [for officials to claim more power] than granted. Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when [the government is given no power] by which restrictions may be imposed? It is evident that [a Bill of Rights] would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that… a power to [regulate the press] was… vested in the national government.
What
Note and
reconsideration of the “medical marijuana necessity” defense
Given the relatively straightforward reasoning in support of legal freedom to use drugs, I return to a narrower matter from Oakland Cannabis Buyer’s Cooperative (OCBC) case.[69] Though the Supreme Court is unlikely to reject the CSA completely, those same so-called conservative justices who rejected the medical necessity defense in re marijuana possession, manufacture and distribution, would be challenged to uphold the rule in OCBC if the defense were presented on narrow principles of the separation of powers and what can be admitted as evidence in a trial.
In City of Boerne v. Flores, 521
Such a principle
and others (below) should have been raised by counsel and or the Court in OCBC.
Recall the court denied marijuana users and their providers an
affirmative defense of medical necessity.
That is the court blocked the respondents from presenting evidence to a
trier of fact whereby evidence would be heard on the question if particular
individuals needed marijuana in the course of their medical treatment.
Specifically the CSA stipulates that all Schedule I substances have no medical application and are highly addictive. Of course, because there was no medical or scientific evidence in support of such a proposition at the time, by definition, Congress failed to show any evidence in support the stipulation. Recall, government experts in the 1930s disavowed any harmful effects of marijuana (Bonnie and Whitebread 1974). And such was repeated after investigation by Dr. Isbell in the late 1940s and early 1950s (Isbell 1951; Whitebread 1995). Furthermore more recent studies, even those funded by the Federal Government, have demonstrated the efficacy of marijuana, ingested via smoking, to treat specific medical ailments (IOM 1999). By accepting the stipulation of the 1970 CSA, the Court has allowed the Congress to usurp rights, if not fundamental liberties, from defendants who are now barred from providing evidence in support of their defense. The OCBC decision then, permitted the impermissible as it allowed Congress to reduce a Constitutional protection. Repeatedly the high court has declared that Congress can extend, but not reduce Constitutional rights and liberties.[70]
For
example, in a voting rights case the Court held that the legal question, as to
which branch of government can define the reach and extent of the meaning of
“equal protection” is for the Courts, not for Congress to decide.
There
is another reason that this present “conservative” court should have ruled in
favor of the Oakland Cannabis Buyer’s Cooperative – the Court’s own pronouncements
about admissible evidence. Though there
was no discussion of it in United States
v. Oakland Cannabis Buyers Cooperative, 532 US 483 (2001) (or OCBC), the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
The majority in OCBC held that the defense could not be raised because at the time the law was passed (1970) Congress decided that marijuana had no medical application. However, the Daubert rule holds that minority scientific theories may be presented to a trier of fact. The Daubert court recognized that scientific theory changes with evidence and technology.
Faced with a proffer of expert
scientific testimony under Rule [of Evidence] 702, the trial judge, pursuant to
Rule [of Evidence] 104(a), must make a preliminary assessment of whether the
testimony’s underlying reasoning or methodology is scientifically valid and
properly can be applied to the facts at issue.
Many considerations will bear on the inquiry, including whether the
theory or technique in question can be (and has been) tested, whether it has
been subjected to peer review and publication, its known or potential error
rate and the existence and maintenance of standards controlling its operation,
and whether it has attracted widespread acceptance within a relevant scientific
community. The inquiry is a flexible
one, and its focus must be solely on principles and methodology, not on the
conclusions that they generate.
Throughout, the judge should also be mindful of other applicable Rules
[of Evidence]. Daubert, 509
Further in Dabuert, Rhenquist claimed that the concept falsifiability, the most significant principle in scientific and statistical reasoning, was too complex for a single judges alone and that juries should hear all possible relevant evidence. So following Daubert, the OCBC should have been allowed to argue the medical necessity defense and have a jury decide if the defense was applicable to federal marijuana laws.
Conclusions
The arguments here are many and multifaceted. What we see is that the drafters of the Constitution intended that federal authority be limited and that it not extend into what is a general police power. Current members of the Supreme Court both adhering to such ideals, and concerned with protecting individual liberty – sometimes – have provided legal arguments that define, as unconstitutional, the CSA, at least its prohibition on simple drug possession. When the question comes before the Court we will see how conservative, traditional, reactionary, etc., they want to be.
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[1] In
a Zogby poll of September 2003 approximately 84% of
[2]
See
[3]
The Controlled Substances Act (CSA), is Title II of the Comprehensive Drug
Abuse Prevention and Control Act of 1970, 21 USC § 801 et seq. The particular sections of the law at issue
are § 841a and § 844.
[4]
532
[5] Ibid.
[6] Ibid.
[7] I
say “proper” for in Santa Cruz et al. v.
Ashcroft, lawyers for WAMM and the City and County governments of
[8]
Cities like
[9]
See Alexander Hamilton’s discussion of the limited grant of federal power from
the people to the government via strict language of the U.S. Constitution in
“Federalist #84.”
[10]
The “tax” model served as the basis for all federal anti-drug legislation from
1914 to 1969 (Whitebread 1995; Belenko 2000).
[11]
Many commentators note that the 16th Amendment blatantly contradicts Art. I § 9
prohibitions on direct capitation tax.
See Erik Jensen, “The Taxing Power, the Sixteenth Amendment, and the
Meaning of Incomes”
[12]
The act forced the Coca-Cola company to import coca leaves illegally (Spillane
1994; Belenko 2000).
[13]
See text of statute at http://www.druglibrary.org/schaffer/history/e1910/harrisonact.htm. What is disturbing at the level of American
constitutional jurisprudence is that, as was noted in Leary (infra), the
[14]
241 US 394.
[15]
In reaction to Jin Moy, Congress
established state import quotas tied to amounts of cocaine or opium needed for
medical purposes in each state and then criminalized possession without a
prescription as presumptive that a person violated federal import laws (Bonnie
and Whitebread 1974, 20). Ultimately the
Court adopted the “defendant’s burden standard.” In Yee
Hem v. United States, 268 US 178 (1925) the Court held: “Legitimate possession [of opium], unless for
medicinal use, is so highly improbable that any [defendant] who obtains the
outlawed commodity, must at [their] peril be prepared to show the facts and
circumstances which rebut the natural inference of unlawful importation” At 184.
The Yem Hee rule was
overturned for criminal defendants generally in 1943 and for drug defendants in
particular by Leary v. United States,
396
[16] Doremus, 249 US 86. Boldly flaunting the idea about the overt
intent of the Harrison Act to work as a simple criminal law rather than a
revenue measure, in United States v.
Behrman, 258 US 280 (1922), the brief of the Solicitor General admitted
that the Harrison Act was a measure aimed to prevent drug addiction.
[17]
According to Gray (1998) the recipient of Dr. Linder’s prescription was a
morphine user indeed, however, she solicited Linder at the request of Treasury
officers. That is, Linder was the
unwitting mark of a federal drug sting operation (86).
[18]
In recent years, jurisprudence about regulating medicine has turned away from a
question of the commerce in drugs to that of doctor-patient privacy, free
speech, and due process/liberty. See
discussions of Glucksberg; Roe v. Wade; and Casey below.
[19]
See a description of this in the 1999 film “Grass” narrated by Actor/Activist
Woody Harrelson.
[20]
Around 1915 American courts made a fundamental shift in the way they viewed
bodily integrity and the range of a state’s exercise of its “police power”
(Bonnie and Whitebread 1974, 29). Up to
that point the common assumption was that a state’s interest in regulating and
“policing” the public stopped at one’s front door. Until 1915 police power was limited to laws
that regulated and protected the public’s health, welfare, safety, and morals –
not matters of private behavior like opium use (Bonnie and Whitebread 1974,
29).
[21]
Smith was an investigator for the U.S. Department of Agriculture. Under the Pure Food and Drug Act of 1906 this
department, not Treasury or Justice, was charged with enforcing national drug
laws (Bonnie and Whitebread 1974, 37).
[22] Montana Standard,
[23]
The key provision in the law was that the Federal Government would not allow
people or businesses (except for birdseed distributors and farmers by 1942) to
become registered hemp importers or processors.
[24]
[25]
Of course domestic production in the 1930s was nothing compared to current
levels. Nadelmann (1991) holds that the
current war on marijuana has stimulated domestic cultivation of marijuana. In 1988, the U.S. Government Accounting
Office admitted that, Marijuana is now grown in all 50 states... [often in
greenhouses] indoors and on a growing number of smaller and more scattered
plots outdoors.
[26]
When in 1944
[27] Leary v.
[28]
The parallel with present day investigations of terrorism are remarkable. Under
the MTA there was not supposed to be direct communication between IRS and
criminal law enforcement agents. In fact
the tax law was a mere proxy for criminal investigation and prosecution. Since the attacks of Sept. 11th, federal
officials have ensured the public that information obtained through
investigations of “international terrorism” will not be turned over to local or
domestic law enforcement. A Department
of Justice report to Congress from
[29] Leary v.
[30] Leary v.
[31]
The text of the Ninth and Tenth Amendments imply that the actions of the
Federal Government are subject to limits, namely specified powers. Simultaneously, these amendments acknowledge
the existence of individual liberties (see Nowak and Rotunda § 3.1). To acknowledge individual liberties, most
often referenced in the First or via the due process clauses of the Fifth and
Fourteenth, is to say that such liberties are inviolate and federal power
cannot trump their preservation. We will
address the topic of drugs and individual liberties below.
[32]
Legal questions considered the Fair Labor Standards Act with its minimum wage,
40-hour workweek, and overtime pay mandates.
See West Coast Hotel Co. v.
Parrish, 300
[33] Fry v.
[34]
Even Fry noted this point. 421 US at 548. Hence the question of federal authority to
regulate purely intrastate commerce has not been settled despite comments to
the contrary. In his dissent in Morrison (infra), Souter argued that In
re Heff, 197 US 488, 505-506 (1905) had [erroneously] overturned a federal
conviction for sale of alcohol to an “Indian,” on the grounds that the sale
occurred outside a reservation and did not involve interstate commerce. Souter claimed that Heff stood for the proposition that Congress could not regulate the
intrastate commerce and that a later Court corrected the misjudgment. Though the result from Heff was overruled (U.S. v.
Nice, 241 US 591 (1916)) it was not on the grounds that Congress could
exercise police power over all commercial activity. Rather Heff
was overruled on the grounds that Congress had sole authority to regulate
commercial trade with Indians – both tribes in their entirety and individual
“Indians” who were neither tribal members nor lived on reservations.
[35]
Congress may pass specific criminal laws in those areas expressly under its
jurisdiction, as noted by Art. I § 8, like securities law, copyright, military
criminal codes, etc.
[36]
See discussions of the “rational basis test” generally in Cleburne v. Cleburne Living Ctr., Inc., 473 US 432, 452 (1985);
[37]
In failing to grant a rational basis for and uphold the laws challenged in both
Lopez and Morrison Rehnquist and those who sided with him, rejected the
findings of Congress about non-commercial activities, gun possession and
domestic abuse, having a substantial effect on interstate commerce. Rehnquist took the opposite tack in HUD v. Rucker, 535 US 125 (2002). Not only did the Chief Justice (writing a
unanimous opinion) take for granted congressional findings about “drug-related”
violence, he permitted the eviction of a wheelchair bound stroke victim and
refused to entertain any constitutional challenges to relevant laws.
[38]
Souter, dissenting, articulated part of the majority argument in its election
to strike VAWA. “The [majority] finds it
relevant that [VAWA] addresses conduct traditionally subject to prohibition
under [state] criminal law, a fact said to have some heightened significance
when the... conduct in question is not itself aimed directly at interstate
commerce or its instrumentalities.” Morrison, 529
[39]
Souter wrote: “One obvious difference
from United States v. Lopez, 514 US
549 (1995), is the mountain of data assembled by Congress, here showing the
effects of violence against women on interstate commerce... With respect to
domestic violence, Congress received evidence for the following findings: Partial estimates show that violent crime
against women costs this country at least three billion–not million, but
billion–dollars a year... [Estimates
suggest that collectively the nation spends] $5 to $10 billion a year on health
care, criminal justice, and other social costs of domestic violence. Less than one percent of all [rape] victims
have collected damages. …Almost 50
percent of rape victims lose their jobs or are forced to quit because of the
crime’s severity.”
[40]
The Whipple decision upheld a state
criminal statute that demanded doctors show good faith in the medical use of
opium. Rather than holding the Harrison
Act pre-empted state regulations in the area of health, safety, and welfare,
the Court claimed that the Harrison Act was a lawful federal exercise of its
tax power. Again, the language and
rationality of the 1921 decision seems to be the majority view today – States
have sole police power save that granted the Congress in Art. I.
[41]
See unproven declarations in United
States v. Wacker, 72 F3d 1453, 1475 (CA10 1995) and United States v. Leshuk, 65 F3d 1105, 1112 (CA4 1995). These cases drew on the “stream of commerce”
language upheld in Katzenbach v. McClung,
379 US 294 (1964) and from what may no longer be good law as written in Hodel v. Virginia Surface Mining, 452 US
264, 277 (1981). To some the stream of
commerce logic must be the current rationale of the DEA in their efforts to
close down medical marijuana cooperatives, but in WAMM’s case, no one involved
buys or sells marijuana. See Santa Cruz et al. v. Ashcroft (2003).
[42] I
say both marijuana and other drugs with the understanding that under present
federal law schedule I drugs are not obtainable via prescription. Though one may obtain opiates and others
narcotics, psychotropics, hallucinogens, barbiturates, stimulants and the like,
under a doctor’s care, the Attorney General may elect to change the drugs
listed under various schedules to schedule I and, in effect, make all
“medicines” illegal.
[43]
According to WAMM’s attorney, Gerald Uelman, despite being deputies of the City
of
[44]
See preliminary rulings in Santa Cruz et
al. v. Ashcroft (2003).
[45]
That is, unlike the finding in Oliphant
v. Suquamish Indian Tribe et al. 435 US 191 (1978) where the Court held
that all Indian tribes gave up their sovereignty to the United States to the
point where they lost to authority to try non-Indians for crimes committed on
tribal land, Supreme Court Judges, e.g. Scalia, declare that States continue to
retain much of their sovereignty.
[46]
See Seminole Tribe v.
[47]
See
[48]
See Morrison and Glucksberg which implicates adherence to the idea of limited
federal authority to regulate medicine, drugs, and medical practices announced
in Whipple.
[49]
Due process means more than fair process and it also implies guarantees to
liberty. The liberty it protects
includes more than the absence of physical restraint. Glucksberg
521
[50]
In Griswold, the Supreme Court
claimed that the patient-doctor relationship is inviolate.
[51]
See Griswold v.
[52]
Citing
[53]
521
[54]
In this respect Glucksberg overturned
Webb et al. v. United States, 249 US
96 (1919). In Webb the Federal Government was allowed to prosecute a
[55]
The Court might also appreciate that there is no falsifiable definition of
addiction (Jones 2000) and many researchers have found that drug treatment has
no efficacy (Tuchfeld 1981; Ravnal and Vaglum 1998). Hence addiction is neither a death sentence
where one suffers ever increasing use rates nor unlikely to end without
treatment (Stall and Biernacki 1986).
[56]
494 US 872. In Smith, justice Scalia claimed that
[57]
Relying on the precedent of Guam v.
Guerrero, supra, on
[58]
Subsection C charts the form of judicial relief: A person whose religious exercise has been
burdened in violation of this section may assert that violation as a claim or
defense in a judicial proceeding and obtain appropriate relief against a
government.
[59] Ravin v. State, 537 P2d 494 (
[60] A
panel of the 9th circuit, relying on the holdings of Morrison and Lopez, just
granted two medical marijuana users and their suppliers an injunction against
the DEA to bar them from seizing and arresting medical marijuana users, their
medicine, and marijuana suppliers. Raich et al. v Ashcroft, 2003 U.S. App.
LEXIS 25317.
[61]
The
[62]
See RFRA and the discussion of it above.
[63]
Harris County, Texas, the jurisdiction including
[64]
See for instance, examples of laws in
[65]
See
[66]
In fact there are higher rates of addiction or problem use with alcohol which
is about 10% (Brecher et al. 1972, 260).
Even with cocaine, less than 10% of all users partake more than once per
month (Washton 1984). Of the 70 million
Americans who have tried marijuana, 95 never used any other illicit drug and 85
percent no longer use marijuana (Males 1999).
[67]
In Oregon v. Smith (1990) Scalia and
other justices argued that
[68]
In the introduction to his book, professor/lawyer Dershowitz provides what he sees
as the rules of the game in American criminal trials. Rule I, almost all defendants are guilty;
Rule III, it is easier to convict guilty defendants by violating the
Constitution than complying with it; Rule IV, almost all police lie about
whether they violated the Constitution in order to convict guilty defendants;
Rule XI, most judges would not knowingly convict an innocent defendant; Rule
XII, Rule XI does not apply to drug dealers… (Dershowitz 1982, xxi-xxii).
[69]
532
[70] Congress may pass statutes that provide additional
Constitutional protections, they may not pass laws to remove said
protections. Christians v. Crystal Evangelical Free Church, 141 F3d 854, 860
(CA8 1998). See Oregon v. Mitchell, 400 US 112 (1970), Congress cannot usurp the
courts by determining what constitutes equal protection as defined in the 14th
Amendment (Nowak and Rotunda § 15.3).
Congress may not legislatively supercede [the Court’s] decisions [in]
interpreting and applying the Constitution.
United States v. Dickerson,
530 US at 437.
[71]
Abrams (2003) has also raised serious objections to the OCBC decision and alluded that the Courts should allow a necessity
defense given that that Congress did not expressly preclude it. See James Abrams: A Missed Opportunity: Medical Use of
Marijuana is Legally Defensible: Case Note: