- The Washington Times - Thursday, June 9, 2005

“When I use a word,” Humpty Dumpty said in rather a scornful tone in Lewis Carroll’s “Through the Looking Glass,” “it means just what I choose it to mean — neither more nor less.” The same might be said of Supreme Court justices. Take, for example, Gonzales v. Raich, the medicinal marijuana case.

The commerce clause in Article One of the Constitution could hardly be clearer in limiting federal power to commerce “among the several states,” not within a state. But in Gonzales v. Raich, a 6-to-3 majority has stretched “commerce” to mean just what they choose it to mean — far enough to let the faraway feds, not the close-to-the-people state governments, decide whether their ailing residents should be allowed to grow their own medicine under a doctor’s care.

In the U.S. Senate’s heated debate over judicial appointments, we constantly have heard conservatives argue that judges should lean toward a modest role for the national government. Over the last decade, a conservative Supreme Court coalition under Chief Justice William Rehnquist has rolled back congressional power and elevated “states’ rights” in a series of decisions. Nevertheless, the Supreme Court reasserted federal authority in Gonzales v. Raich on Monday, even in the 11 states that now permit marijuana when it is recommended by a doctor. The people in those states have spoken, and the Supreme Court told them to shut up.

Justice John Paul Stevens’ majority opinion stretched the meaning of “commerce” to include anything done in one state that could have “a substantial effect on interstate commerce.” And how does the court define “substantial”? Broadly enough to cover just about anything. “Production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity,” Justice Stevens wrote.

Justice Antonin Scalia, the archest of the high court’s arch-conservatives, chimed in, if only to say Justice Stevens’ federal intrusionism did not go far enough. “Drugs like marijuana are fungible commodities”; even when “grown at home and possessed for personal use,” marijuana is “never more than an instant from the interstate market.”

Both opinions sound more like economic theory than day-to-day reality. After all, medical marijuana market is only a fraction of a state’s overall drug traffic. How much effect can it have on the overall illegal multibillion-dollar industry?

That very rational point, among others, was made by Justice Clarence Thomas, who cut himself loose from his usual tether to Justice Scalia’s world views to raise a clear, compelling and badly needed voice of reason: If the two California women who are the defendants in this case are involved in “interstate commerce,” he asked, what in these United States is not “interstate commerce?”

“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana,” Justice Thomas wrote. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the federal government is no longer one of limited and enumerated powers.”

In other words, keep your federal hands out of matters that pertain only to a particular state and do not infringe on fundamental human rights. That human rights point is particularly significant to African-Americans like Justice Thomas and me. Besides sharing the same first name (and a mighty fine one it is, if you ask me), we both happen to be old enough to remember when “states’ rights” was offered as a lame excuse to perpetuate racial segregation laws in the South. The 1954 Brown v. Board of Education decision properly overruled “states’ rights” that violate fundamental human rights.

By contrast, Gonzales v. Raich ironically overrules states’ rights to violate a humane right, the right of the sick to treat their own illness. “Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens,” Justice Thomas writes. Right on.

The good news in Gonzales v. Raich is that the high court did not overturn any existing state medicinal marijuana laws. Justice Stevens’ decision also ruled in defiance of Congress and John P. Walters, the Bush administration’s director of national drug control policy, that marijuana does indeed have “therapeutic value,” as if anyone had any legitimate reason left to believe it doesn’t.

Justice Stevens suggested the executive branch might reclassify marijuana for medical purposes or Congress might allow “the laboratory of the states” to decide this matter.

In fact, Congress is considering two bills, backed mostly by Democrats and libertarian-leaning Republicans, that could legalize the medicinal use of marijuana at the federal level.

Congress usually kicks such hot-burning issues as marijuana reform over to the courts. This time, the courts have kicked it right back. Congress, as W.C. Fields once said, needs to take the bull by the tail and face the situation. And the public needs to make itself heard.

Clarence Page is a nationally syndicated columnist.

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