A Sad Day For Liberty

"The opinion which gives to the judges the right to decide what laws are constitutional and what not… would make the judiciary a despotic branch."
--Thomas Jefferson

"The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
--Thomas Jefferson

“John Ashcroft you should give up now! I am not going to give up my life to you or for you. I will fight you all the way to the Supreme Court if I have to. I promised my children I would do everything I have to stay alive so I can be here for them, even if it takes my very last breath. I am asking you to PLEASE STOP TRYING TO KILL ME.”
--Angel Raich

The Supreme Court reached a tragic decision today.

Mrs. Angel Raich, the mother of two, is a very ill woman (read her story). She suffers from an inoperable brain tumor, a life-threatening wasting syndrome, chronic pain disorders, a seizure disorder, nausea, Scoliosis, TMJ, Endometriosis, a Uterine tumor, and many other documented medical conditions. Medical treatment for Mrs. Raich is complicated by the fact that she is violently allergic to many medications. In 1996 her disorders confined her to a wheelchair. She lived in constant pain. Her son and daughter, ages 8 and 10 at the time, suffered almost as much as she did.

But the tide began to turn in 1996 when California voters approved a state-wide referendum allowing marijuana use with a doctor’s prescription. In 1997, one of Angel’s doctors recommended medical marijuana to her. It was a godsend. Marijuana helped to control the pain and nausea that plagued her. By 1999 she had regained control of her partially paralyzed right side and was able to leave her wheel chair for the first time in three years.

As a result of marijuana, Angel’s life was made livable. Her kids got their mama back. After long years of deepening misery, things were finally getting better for the Raich family.

Enter leviathan.

Although medical marijuana use is legal under California law, it is illegal under the federal Controlled Substances act. Marijuana is listed as a “schedule I” substance under the act, meaning it is deemed a strictly forbidden dangerous substance with no possible medicinal use despite gobs of evidence to the contrary. In 2002, federal Drug Enforcement Administration (DEA) agents conducted a sting operation, raiding the gardens of medical marijuana patients in California. The agents destroyed the patients' marijuana plants and confiscating their land and property. Deathly ill people were handcuffed and led away by gun toting strongmen.

Angel Raich saw what was happening and refused to give up the one thing that had given her and her family hope. In response to a DEA raid, Angel sued. Her case came all the way to the Supreme Court.

The ethical course for the Supreme Court was clear. People have the right to control what they put in their own bodies. This is especially true when the substances they choose to put in their bodies are responsible for keeping them alive. To stop Angel Raich from using marijuana would be tantamount to murder.

However, the United States is a nation of laws, not a nation of ethics. Ethical standards can vary from person to person, but laws give us an objective, predictable way of ordering society. To decide the fate of Angel Raich, the men and women of the Supreme Court would have to consult the nation's laws.

I must admit my ignorance in this realm. I’m not a lawyer, so when I read words I think they mean what they say. A good summary of the facts and legal issues from a lawyer's perspective can be found here.

The Constitution of the United States is the supreme law of our nation. The 10th amendment to the Constitution simply states that any power not explicitly given to the federal government earlier in the document is reserved to the states. To me, this amendment is clear and easy to understand. If the Constitution doesn’t say that the feds can do something, that means they can’t.

As I don’t recall anything in the Constitution that says that some parts count while other parts don’t, this amendment should mean that the federal government does not have the power to control or ban any substance. Twelve states have passed laws permitting the use of medical marijuana since 1996, and state law should take precedence.

Lawyers call this idea the doctrine of “enumerated powers”. The people who wrote and ratified our constitution thought the doctrine was a sensible and vitally important check on the abuse of federal power. Nowadays, anyone that believes in the doctrine of enumerated powers is considered a right wing crackpot.

The doctrine of enumerated powers may be clearly written into our constitution, but in practice it doesn’t matter what the Constitution says. It matters what the Supreme Court says it means.

The clause which undid the doctrine of enumerated powers can be found in article I, section 8 of the US Constitution. It says that congress has the power to regulate “interstate commerce”. To any student of history, the purpose of this clause is obvious. The writers of the Constitution wanted to ensure that states couldn’t pass tariff laws against each other. They wanted to ensure the free flow of people and goods across state borders, something that had been lacking in the Articles of Confederation, their previous attempt at forming a national government.

During the administration of FDR, the Supreme Court interpreted the interstate commerce clause to give wide power to the federal government. In the 1942 case Wickard v. Filburn they found that the interstate commerce clause gave the federal government the power to regulate how much wheat a farmer grew on his own land for his own personal consumption, even if it were never transported across state lines, or even outside his farm for that matter. Their reasoning was that some wheat was sold in interstate markets, so his activities did effect interstate commerce.

If this reasoning sounds a bit convoluted to an ordinary man like myself, that’s because it is. The Supreme Court’s decision wasn’t based in logic or the rule of law, but in furthering the political agenda of Franklin Roosevelt. Since that time, the 10th amendment has been essentially dead. The federal government can do just about anything it wants and appeal to the interstate commerce clause to justify its actions.

In the 1920’s, before the reign of FDR, alcohol prohibitionists had to pass an amendment to the constitution to create a federal ban on the substance. The law did not change between 1920 and 1970, but suddenly no constitutional amendment was necessary. Thanks to the Supreme Court's interpretation of the interstate commerce clause, congress’s power had become nearly unlimited. It passed the Controlled Substances Act, banning marijuana and other substances.

With Angel Raich’s lawsuit, the Supreme Court had an opportunity to curtail the abuse of federal power by ruling that growing marijuana for private use is not governed by a reasonable interpretation of the interstate commerce clause.

But the justices -a poor name for such men- sided against Angel Raich in a 6-3 decision today. Like the FDR court, their decision is motivated by a political agenda and neither reason nor compassion.

The responsibility for the pain, suffering, and even death of thousands of people rests with the federal government for prosecuting their insane War on Drugs. The federal government has extended the War on Drugs into a War on Sick People and Their Doctors.

Angel Raich is a brave person for standing up to the federal Leviathan. May more people join her in legal and physical resistance to the growing tyranny of the lawless American police state.

Update

Radley Balko has some great commentary on this case including this gem from the dissenting opinion of Justice Thomas:

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers--as expanded by the Necessary and Proper Clause--have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of "regulating commerce."