Monday, November 29, 2004

Personal use pot argued before the Supremes

If medical weed is ever gonna get the blessing of the highest court in the land, now is the time. This case involves personal use only, and the figurehead plaintiff is pretty sympathetic. There has been an elegant inversion of the normal alignment of law and fact -- the pro-toke folks are using a states' rights argument. And of course, the conservative Chief Justice is battling cancer, and may even be going through chemo.

The feds are trotting out a parade of horribles they want the Court to focus on.

A loss for the government, on the other hand, could jeopardize federal oversight of illegal drugs and raise questions in other areas such as product safety and environmental activities. A Bush administration lawyer told the justices they would be encouraging people to use potentially harmful marijuana if they were to side with the women.

"If they're right, then I think their analysis would extend to recreational use of marijuana, as well as medical use of marijuana, and would extend to every state in the nation, not just those states that made it lawful," said Paul Clement, acting solicitor general.

I'm normally skeptical of slippery slope arguments, but this one gives me some pause. Will Texas try to opt out the the Clean Air Act if the Court allows California to opt out of the federal program here? What if Alabama opts out of civil rights legislation?

In our desperate attempts to make lemonade out of our electoral lemons, liberals have talked a fair amount about going our own way via states' rights arguments. I think we will need to really think that one through before we head down that road.

In this case I think a narrow decision in favor of medical Mary Jane is possible. The basis for damn near all federal legislation is something called the Commerce Clause, and it has been twisted beyond recognition over the years, but the Rehnquist court has tried to put some limits on it. I think the Court could reasonably find that federal law can't reach the home-grown personal stash of these patients. Of course, from the perspective of the feds, this could mean they can't reach your personal homegrown stash, either.

Complicated, ain't it?


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