Here’s where I break strongly from social conservatives, law enforcement, and morality warriors/czars, be they on the right or left (but alas, too often on the right).
From CBS/AP:
A federal appeals court ruled Wednesday that a California woman whose doctor says marijuana is the only medicine keeping her alive is not immune from federal prosecution on drug charges.
The case was brought by Angel Raich, an Oakland mother of two who suffers from scoliosis, a brain tumor, chronic nausea and other ailments. On her doctor’s advice, she eats or smokes marijuana every couple of hours to ease her pain and bolster a nonexistent appetite. Conventional drugs did not work, she said.
This is a major setback for the medical marijuana movement, CBS News correspondent Barry Bagnato reports. This particular federal court has been more sympathetic than others when it comes to considering whether pot can be used to relieve pain or even save lives.
Nearly two years ago, however, the U.S. Supreme Court ruled against Raich, finding that the Constitution’s Commerce Clause clearly gives the federal government the right to restrict the cultivation and use of marijuana, even if state laws  like those in California  allow it.
Because of that ruling, the issue before the 9th U.S. Circuit Court of Appeals was narrowed to the so-called right to life theory: that the gravely ill have a right to marijuana to keep them alive when legal drugs fail.
Raich, 41, began sobbing when she was told of the decision and said she would continue using the drug.
“I’m sure not going to let them kill me,” she said. “Oh my God.”
The government has said it could not guarantee that Raich or other seriously ill patients using medical marijuana would not be prosecuted. Over the years, the government has raided dozens of medical marijuana dispensaries, mostly in California.
The case is likely to reach the U.S. Supreme Court. But each time the high court has taken up the issue of medical marijuana, it has ruled against allowing the sick and dying to use the drug.
The latest legal wrangling once again highlighted the tension between the federal government, which declares marijuana an illegal controlled substance with no medical value, and the 11 states allowing medical marijuana for patients with a doctor’s recommendation.
So much for principles of federalism.
And this is why, when asked to cite the worst judicial decisions of all time, I noted as among them Raich, which—in my opinion—does to the Commerce Clause what Kelo does to Takings.
When the “right” complains about judicial activism, it needs to account for Scalia’s eschewing of his own espoused “originalism” in Raich and Stevens’ inanity in Kelo, it seems to me—though thankfully, it can offer Thomas, consistently, as an anecdote.
Here’s how a WSJ editorial characterized the earlier SCOTUS ruling that, in effect, structurally constrains this latest ruling by the 9th Circuit:
If, as Justice Antonin Scalia wrote in his majority concurrence, non-economic activities can be regulated so long as they are part of a “comprehensive scheme of regulation,” there would appear to be no federal power the Commerce Clause couldn’t theoretically justify.
And let no one be deluded that the democratic preference of America’s largest state isn’t being trampled here. We didn’t support the California medical marijuana ballot initiative at issue in Raich. But a clear majority of Californians did. Just because an issue is “important” doesn’t mean it should be a matter for federal law. Almost all homicide is regulated at the state level, and contentious issues like abortion rights are best handled not by judicial fiat but by democratic compromises in the 50 states. Who knows what further intrusions into the rights of local polities the Raich decision may one day be used to justify?
Precisely on point. The WSJ might disagree with medical marijuana initiatives (I don’t, but that is a debate over policy), but it is careful not to let its stance color its judgment of the SCOTUS ruling that gives the federal government such broad Commerce Clause latitude that it effectively leaves the Commerce Clause open to all sort of politically-motivated deployments.
And that is a whole lot of power to hand over to the federal government just because you are averse to the idea of people smoking a plant.
Raich and Kelo marked when I officially saw Thomas as my hero and Scalia as my bunghole. Everything that chump says when he proselytizes about the literal translation of the Constitution is pure bullshit.
WTF? I think that the folks in retirement homes ought to be able to take ecstasy, if they want to.
Actually Raich can be viewed as a pretty straightforward application of Wickard. Roosevelt/Congress wanted a great expansion of commerce clause powers and this is part of that legacy.
I think one of the articles I linked to noted that it was an extension of New Deal thinking, but it also marked an end to Lopez-like thinking of the 90s that had the Supremes rolling back this ever-expanding Commerce Clause power.
I think Roosevelt was a dickweed for doing so. Fuck him and the wheelchair he rode in on. He instituted the slipper slope we now find ourselves in with every constitutionally recognized right and protection. Abortion, gay marriage, affirmative action, social engineering of all types (yes, even civil rights laws) can be drawn under the rubric of some commercial exchange among states. This is just a continuation of the federal governments imposition of its power, which began in earnest before the ink even dried on the Constitution.
I take many libertarian stances on issues like gay unions and I even encourage the federal government cracking redneck skulls to protect the franchise for fellow americans who happen to be black. But really, many of these issues belong to the states.
What really gets me though is that when I am pushing 70 years old, I want to do so with some high grade cheeba while I’m wrestling with the ol’ playstation. Because its my right.
Thomas’s decisions make better legal sense, and he believes what the Constitution says, which is…cute, but Scalia’s “the government can do anything it says it can” rulings–and that’s all his rulings ever are, elaborate excuses for any state action that benefits the state (he does think about that), sprinkled with originalist-flavored red meat–are 100% real-world right. Try to stop them.
Thomas thinks he can. It’s fucking hilarious.
If I had a brain tumor I would not use the last hours of my one God-given life in litigation. I would just buy weed. And smoke it. What a drama queen. More power to her and all, but sheesh.
He instituted the slipper slope…
Anybody who institutes the slipper slope has lost my vote.
The thing that really blew me away about this was the the 9th Circuit actually upheld the SC’s ruling. Of all courts that could have punted in defense of states rights for Med cheeba I would have picked the 9th.
Those fuckers apparently can’t get anything right.
And there are few things more outrageous than denying a dying person the right to alleve their suffering by SMOKING A GODDAM PLANT.
“Slipper Slope”? Is this like, Memories of a Geisha? Bad, Bad.
Conservatism has to have a strong libertarian component to survive in the modern world, otherwise it will devolve easily into some species of totalitarianism (as well the liberal side.)
A lot of people smoke dope, including a lot of 50-somethings. I don’t, but I would on the weekends if it was legal. Legalize it, price it at $20 a joint, sell it in liquor stores, etc. etc. and there you are.
It’s a disgrace to be hassling sick people for wanting to get high.
It’s a disgrace to be hassling anyone for wanting to get high.
It’s not just about wanting to get high, though (I know you know that). She just wants to alleviate the fucking pain in a state that has allowed her just that right. Unbelievable. Federalism is dying steadily and too many alleged republicans are helping to pull the plug.
Here’s where I break strongly from social conservatives… and morality warriors/czars.
I would like to state as one of the social cons that I thought Raich was an abomination. Just because I list to starboard doesn’t mean that I believe that federal government should intrude into issues best left for the state to decide.
Maybe it’s a minor, but I think that you unnecessarily conflated the conservatives with the “morality warriors”. They are simply people who want to use the club of the state to enforce the things that they like, and I see that as a problem in of itself.
The only thing that twists my panties in a wad (trust me, they’re very nice panties) are people who push for medical marijuana because they themselves want to smoke it. 99% of the people I know who argue for MM do so because they see it as a way to legalize it for themselves.
Oddly, as a social conservative myself I see no problem in allowing people to free-base those little packets that come in aspirin bottles to keep shit dry if they so desire, so long as when they find themselves on the street, homeless and lugging around a “Will Work For Facts of Life DVD’s” sign, don’t require me to bail you out with my tax dollars.
Alas, I agree that too many ‘Republicans’ are simply Leftists with a penchant for Jesus and reruns of Father Knows Best.
I dunno, if I were regional head of the DEA I think I could probably find more important cases for my agents to pursue than a dying grandma smoking reefer for the pain.
But that’s just me.
I consider myself a social con, and am not particularly inclined to wish for the legalization of marijuana, but Raich was over-reaching of the worst kind, and this, well this is just crap.
This is blind bureaucratic adherence to the “rule of law” pretending it is also somehow moral. When did government forget it’s supposed to be about the individual?
But maybe not easier cases, and sometimes that’s what it’s all about, unfortunately. I’m not sure if they’re still doing it or not, but the Missouri Highway Patrol used to include all the uncultivated ditch weed that they burned in their “marijuana destroyed” total for the year, because it was an easy way to make their destruction totals look higher. Never mind that you’d have to smoke nearly every plant in the entire state to get any sort of high.
Clarence Thomas is the only SCOTUS justice who actually bases his opinions on the Constitution. Scalia is hardly a bunghole – certainly he’s better than Bader-Ginsburg – but he’s willing to ditch originalism when it leads to rulings he finds personally distasteful.
Raich and Kelo are disgraces.
Robb Allen, you don’t know me, but I assure you not everyone who favors medical marijuana does so because they want to smoke weed themselves. Not even 99% do. I smoked for 20 years, and its illegality never inconvenienced me in the slightest. I could pick up the phone and get a bag in half an hour if I chose. I don’t smoke now, and I’m not going back – but my approval of medical marijuana has not changed.
Resistance to medical marijuana will crumble when the Reefer Madness generation dies of old age.
Well, Lopez may still stand for the idea that there are some limits; at least the law has to be tied to some kind of interstate commerce, even if the effect is only to the market of a commodity. Gun violence in schools and abused women are still probably too remote.
Raich shows what the progressive project is really about: control. A decision the other way would have turned 70 years of Commerce Clause jurisprudence on its head. Control over economic life (the most important kind, as the Founding Fathers knew) trumps their precious “privacy” when the two go head to head.
TW: private72, spooky!
It seems senseless to me that a person can get hooked up to a morphine drip for pain management but marijuana is not allowed.
Someone has their head deeply implanted.
Deeply.
It’s important to realize that it wasn’t. Going the other way on Raich, as Jeff pointed out, would have further eroded the New Deal Commerce Clause decisions; in fact calling into question entire premise of some of the core ones. Without that line of cases, Congress wouldn’t have to power to do hardly any of what it does today. The statists had to decide the way they did. Yeah, and then there’s Scalia, who sided with the cops, big surprise.
They pursue these cases to destroy the Califonia law and set precedence. They’ve been at it since the California law passed. This also helps justify DEAs budget.
I have no issues with weed smoking. I know many cops that don’t either. Hell, even the DEA only goes after major growers here in the state. This won’t affect anyone who grows for personal use, medical or otherwise. It’s only the greedy and dumb ones who will get caught by the feds.
Patrick
I’ll have to refresh my memory on the decision, but it seemed to me to be based on the notion that the marijuana could be sold across state lines, and as such was considered under the purview of the Feds and the commerce clause.
First, am I getting the basic gist of the decision correct and second why is this to be considered a good thing?
I want to understand where you are coming from, so any information you could provide me would be appreciated.
My brother the retired state trooper said he’d rather legalize pot and criminalize alcohol if he had to choose.
Why? “#1, drunks practically never forget where there car is while stoners can hardly find theirs. #2, drunks tend to drive too fast hit things hard while stoners (if they can find their car and finf their keys and manage to get their car started) tend to drive realllllly slow and ‘bump’ into things. #3, drunks are pugnacious and have to be subdued while stoners are just overly friendly and want to give you a hug. #4, drunks are hard to distract and tend to keep in trying to give you trouble while with stoners all you gotta dois say something like, ‘hey, dude, wouldn’t you like to sit in the back here and fire up another doob, and they forget everything else.”
He had some others, too, but it boils down tothe fact that stoners are less dangerous on the highways, in general, than drunks.
Pot should fall, IMO, into the same legal guidelines as alcohol with regards to employment, driving and such. God knows the government could tax the hell out of it.
Having never smoked it, I can’t attest to any sort of vicious withdrawal. Alcoholics and smokers, on the other hand, do have nasty withdrawal symptoms. (I’m dealing with a teenager who is quitting smoking right now, joys…)
This woman is dying. I know other people afflicted with cancer whose only means of rousing an appetite *is* to smoke a joint. The THC pills just don’t work for them.
The DEA will have plenty of work trying to bust the meth/crack/heroin circles, those being the drugs that will kill you and rot you from the inside out. Hell, they’d probably have an easier time of it with all the manpower freed up from trying to chase down Eunice and Gertrude toking up after chemo…
JorgXMcKie, that was so true. And so funny.
My word is race87, as I was racing to get this in before alphie or one of our other esteemed trolls manages to blame this on Bush. Or Iraq. Hell, *and* Iraq.
Just do what they did with tobacco; make it legal, impose a hefty tax to pay for universal health care then send Rob ‘meathead’ Reiner around the country indoctrinating the evils of marijuana smoke.
Collect money and feel good at the same time.
Drugs are bad…m’kay?
How on earth do they find a jury that will convict someone in cases like this?
TW: century12—Yes, that seems about right.
I have to say I’m of two minds on this one. The first covers the Federal role in controlling medicinal drugs. There’s certainly a whole argument to be made for that regulatory role. If we look at this as patient wants to use medicine X which isn’t approved and the feds want to stop them then it seems OK.
On the other hand, there’s the whole “War on Drugs” thing and especially marijuana. It seems like it would be better in general to simply legalize it and deal with it that way. From that side, it’s hard to say that it’s right to deny this particular patient this treatment. Suppose the doctor told her to pound a whole bottle of JD every three hours to feel better and it actually seemed to work. What would we say to the doctor and patient then?
So, in the specific case I’m definitely for the patient, in the general case as long as we’re controlling which drugs can be used for medical treatments then I support the Fed position.
I’m glad I was able to clear all that up.
TW: year24 – This time Jack Bauer is going to really rack up the body count.
I hope the opponents of medical cannabis (I refuse to use the term Anslinger invented) don’t die of painful cancers when their time finally comes. Then again, if they do, maybe attitudes will finally change.
Not that I’m wishing a wasting cancer on anyone. That would be downright rude. Like denying a dying woman pain relief.
While that is one issue, it’s really that growing marijuana for yourself, or someone else’s benefit (which was one of the two Raich cases), was seen as having, or potentially having, an impact on the market price of a commodity. Commodities are pretty much “interstate” per se since Wickard v. Filburn.
I don’t think I said it was a good thing, I was pointing out that a lot more was on the line than medicinal marijuana, which might popularly be seen as a privacy issue. One of those things is Federalism, another is the very broad powers Congress now has under the Commerce Clause. I pointed out that the decision wasn’t over-reaching according to the way the SCt. had interpreted the Commerce Clause for most of the 20th Century, meaning to suggest that deeper appreciation of the roots of the case in Constitutional law would reveal the problems that may be encountered in pursuing a better policy through the courts. Congress needs to change the law to allow people to use marijuana for humanitarian reasons.
I will suggest one possible “good thing” about the Raich decision, it’s been something I’ve been struggling with myself a bit. It goes like this:
If the law, as interpreted by the line of cases on the Commerce Clause, dictates a certain result (the actual result here), as a conservative, non-“activist” type of judge should one vote in favor of that result despite a personal distaste for both the outcome and original decisions upon which it was based. I personally don’t think so, but many judges have, and do. It’s an interesting question, I think.
This social conservative is in favor of medical marijuana. Hell, legalize it,, its safer than booze and coke.
/waves goodbye to his conservative “bonafides”
Thanks Patrick.
The Chronic is about the only kind of those drugs I’d consider legalizing.
Patrick —
One of my chief concerns (my only chief concern, really) over appointing conservative judges like Roberts, is that they tend to give too much weight to stare decisis.
Which is why Democrats are so concerned with making sure conservative jurists respect stare decisis (and SUPER DUPER PRECEDENT): they don’t want anyone rolling back all the sweeping gains to federal power they’ve worked so long and hard to wring out of the Constitution.
In Scalia’s case re: Raich, the heavy lifting had been done for him: SCOTUS was rolling back CC powers in the 90s. So a case can be made that his ruling deviated from the prevailing trajectory.
Orin Kerr has made a fairly persuasive argument that Scalia’s opinion had nothing to do with his anti-drug stance; but I’m not convinced by it, honestly.
Jeff,
I’m curious what a Roberts might do with a “Super Duper Precedent” case myself, for that very reason. He and Alito are who I had in mind. Another reason I brought it up is that I’ve had a couple of professors so far at school who have tried to push the idea. Of course, if you follow that logic too far, then you never overturn the truly diabolical Plessy.
It’s important to realize how revolutionary a decision in the other direction in Raich would have been. It’s one thing to draw the line, but quite another to start to actually rollback.
WRT to Orin Kerr’s argument, I’m not sure I’m buying it either. Since Kennedy’s vote was the deciding one, I think it let Scalia give in to his “anti-drug” impulses.
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