L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 124, June 4, 2001
Another Nadir in Homicidal Hair-Splitting
by Vin Suprynowicz
Special to TLE
The United States Supreme Court ruled Monday there is no "medical necessity exception" to the federal Controlled Substances Act -- a lower appellate court "erred by considering relevant the evidence that some people have 'serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate these conditions or their symptoms,' that these people 'will suffer serious harm if they are denied cannabis,' and that 'there is no legal alternative to cannabis for the effective treatment of their medical conditions.' "
Federal court prosecution of the Oakland Cannabis Buyers' Cooperative et al. shall thus proceed, Justice Clarence Thomas wrote for the unanimous court.
The California-based American Medical Marijuana Association (http://americanmarijuana.org/ -- founded by former California Libertarian gubernatorial candidate Steve Kubby) was quick to reassure concerned parties that the ruling was of sharply limited scope:
"It is important to recognize that the Supreme Court decision did not strike down or in anyway modify any state medical marijuana laws," the AMMA wrote in a press release. "The Supreme Court did not say that citizens don't have the right to cultivate and possess medical marijuana within their own state borders. All this decision said is that medical necessity is not a defense to federal law.
"Bottom line," the AMMA continued, "medical marijuana still stands in those states that have approved it. Even the medical marijuana clubs will be largely unaffected, because they will simply switch from distributing medical pot to helping patients grow their own. ..."
Maybe. But it turns out I wasn't the only person whose first response was to recall the high court's previous nadir of homicidal hair-splitting, when Justice Taney held in the infamous 1857 Dred Scott decision that black men are property, not persons entitled to the protection of the law.
The court and its defenders will whine that they're not supposed to "legislate from the bench"; that they were only asked whether there is a "medical necessity defense" under the federal Controlled Substances Act, whereupon they looked it up, determined that there was none, and so ruled. The question of whether the Drug War on a whole is Constitutional wasn't answered because it was never asked. The court simply tells us what Congress intended.
Which is a black-hearted lie, of course. If Congress in a fit of madness were to enact the Nazi race laws tomorrow , would the eight justices sit there with straight faces, instructing us "We cannot locate within the Act any 'religious freedom' exemption to the requirements that Jews sew yellow stars on their clothing, that Jews are no longer allowed to own businesses," etc.?
Of course not. When it's the First Amendment right of religious freedom that's involved, everyone understands the court's first duty is to determine whether the law in question is Constitutional on its face.
If it isn't, under the great precedent of Marbury vs. Madison (in which the court answered several questions which no one had bothered to ask, by the way) the law is held to be null and void; we're instructed to treat it as though it never existed.
Besides which, attorneys for the Oakland Cannabis Buyers Cooperative et al. did assert (as Justice Thomas acknowledges) that the federal drug statute "exceeds Congress' Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments."
So there it is, laddies, staring the eight lawyer-politicians (Ms. Breyer retired to the powder room) square in the face.
Because, you see, the entire federal drug war -- all of 21 U.S.C. -- is blatantly unconstitutional, and any high court obeying its oath to preserve our government of limited power (as opposed to insisting we prostrate ourselves before the majesty of the federal government's plenary authority, holding us down by the elbows while the DEA greases up and services us from behind) would have thrown it out in its entirety the first time they got a look at it.
There are no fewer than three independently sufficient grounds on which this could and should be held. The weakest of these is the 10th amendment, which tells us that any power not specifically delegated to the United States by the Constitution is reserved to the states or to the people. Since nowhere in the Constitution is Congress delegated any specific power to regulate drugs, the practice of medicine, or what responsible adults choose to put in their own bodies, any state law (like California's successful 1996 medical marijuana proposition) supersedes federal authority.
This is the weakest argument simply because it would seem to authorize state drug wars. I personally wouldn't feel all that much better having my door kicked in and being hauled away in chains by local drug warriors based in in Carson City or Sacramento or Tallahassee than by the federal variety ... would you?
Now, truth be told, even state drug wars are further banned under the 14th Amendment (the second sufficient grounds for tossing out the Drug War.) Originally enacted to stop state authorities from passing "gun control" laws which could disarm black Civil War veterans, this amendment bans the several states from "abridging the privileges or immunities of citizens of the United States."
Under the 14th, the high court could and should have thrown out California's current marijuana distribution scheme not because it allows some marijuana use, but because it places any restrictions on marijuana use, at all.
Am I saying Americans have some kind of right to drugs?
Damned right, and here's where we come to the constitutional provision which even a second-year law student could hardly ignore. The Ninth Amendment advises the justices that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
In 1787 and thenceforward, at least through 1915, did our ancestors on these shores "retain the right" to grow, produce, import, buy and sell opium, cocaine, alcohol, and marijuana by the pound or by the ton, as and whenever they pleased, without federal restriction save the occasional modest excise?
Indeed they did. And the proof is that when Congress wanted to ban one of these forms of commerce, a separate Constitutional Amendment -- the 18th, since repealed -- had to be enacted to allow a federal ban on "intoxicating liquors."
So: when was the parallel and necessary constitutional amendment ratified, authorizing the War on Drugs?
Pardon me, I didn't hear that. Could you speak up, please? What year?
There is none, of course. The Ninth Amendment stands unchallenged; the entirety of 21 U.S.C. stands invalid, and Justice Thomas acknowledges the court just had someone advise them: "Hey, that emperor has no clothes."
Nor is this merely some technical argument. Peter McWilliams, author of "Ain't Nobody's Business If You Do," died vomiting in his bathtub ast year because a California judge with a withered soul ruled he couldn't use marijuana to keep down his chemotherapy drugs while out on bail on charges of possessing medical marijuana.
They killed him, as surely as they're willing to kill Steve Kubby, whose survival of advanced adrenal cancer can only be explained by the effectiveness of his marijuana therapy. (A citizen jury quite appropriately acquitted Kubby and his wife of marijuana charges earlier this year under California's medical marijuana law, but he still faces jail on a minor related charge.)
"Today, the same Supreme Court that once ruled black slaves were the legal property of their white owners, has again earned a place in infamy by ruling that no medical marijuana necessity defense is possible, simply because Congress has already decided that marijuana has no medical value," Steve Kubby wrote Monday.
"A man sees another man drowning and steals a boat to rescue him," Kubby wrote. "What should happen to the man who stole the boat? ... For centuries, common law has upheld the right to break a law, in order to protect human life. ...
"Does saving a patient's life justify a cooperative of patients in breaking federal law? According to the Supreme Court, it does not."