Marijuana decision stomps states' rights

June 08, 2005|By GREGORY KANE

TWO YEARS AGO, Gov. Robert L. Ehrlich Jr. signed a Maryland law that lessened the penalty for medicinal use of marijuana.

Two days ago, Supreme Court Justice Clarence Thomas was part of the minority which said that on the matter of medicinal use of marijuana, states have every right to tell the federal government to go take a long walk on an oil-slicked pier.

Ehrlich and Thomas have been called extremists. Ain't something wrong here?

Oh, ain't it ever. And one of the things that's wrong is the footloose and fancy-free way some folks have of slinging that "e"-word around. Democrats have called some of President Bush's federal judicial nominees "extremist" and "not in the mainstream" of American political or judicial thought. I'll leave you to ponder why the party that does not control the White House, the U.S. Senate or the House of Representatives gets to determine what is and is not mainstream.

When Ehrlich signed Maryland's law about medical marijuana, he emphasized that there is no uniformity of opinion within his party.

"There are two wings of the Republican Party," the governor said then. "One traditional conservative, and one libertarian conservative. I belong to the latter and always have."

Ehrlich was only partially right. There are three wings of the Republican Party: traditional conservatives, libertarian conservatives and conservatives who are just downright wrong. Bush's decisions and policies often put him in the latter wing.

Thomas is from that dying wing of conservatism which still believes that the 10th Amendment - the one that refers to states' rights - has some meaning. He was a dissenter in Monday's 6-3 decision allowing the federal government to prosecute users of medical marijuana in the 11 states where it's legal.

Two California women, Diane Monson and Angel McClary Raich, brought the case after authorities raided Monson's house and seized six marijuana plants. Thomas wrote that Monson and Raich used marijuana that had "never been bought or sold" and "never crossed state lines."

He added: "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."

There goes that darned Thomas again, talking about how the federal government's powers are limited to only what's enumerated in the U.S. Constitution. If Congress wants to pass a law outlawing the transport of marijuana across state lines for sale and use, it's one thing. But if Monson and Raich want to use home-grown pot to relieve pain and suffering, then restricting that use is far beyond the enumerated powers given Congress by the Constitution.

There is plainer and simpler language for this: The federal government should butt out of grown folks' business. (Ironically, some of the justices in the majority on the marijuana case support the decision in Roe v. Wade, when the court ruled that state governments should butt out of grown folks' business. And, critics feel Roe v. Wade amounts to a branch of the federal government minding the states' business, in violation of the 10th Amendment.)

Thomas, Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist - who dissented from the majority opinion in the medical marijuana case - figure state legislators can think for themselves and work out such problems such as when marijuana can and can't be used without guidance from Congress or the high court.

Conservative Justice Antonin Scalia voted with the majority who think of themselves not so much as the Supreme Court, but as the Supreme Junta. (So much for Thomas being Scalia's shoeshine boy, as some black liberals have charged.) At least five justices on the current court figure it's their duty to teach Americans who's their daddy: the federal government.

Joining those justices are certain members of Congress - Democrats and Republicans - and, of course, our president. Two years ago, Bush and other GOP honchos tried to browbeat Ehrlich into not signing Maryland's law, arguing, according to news reports, that it might lead to the legalization of the devil weed marijuana.

If I were Ehrlich, I would have asked, "And your point is what, exactly?" Cigarettes and alcohol, two products every bit as destructive as marijuana, are legalized. Bush should know that better than most of us.

The laws in California and 10 other states decriminalize the medical use of marijuana. If the federal government insists on throwing its weight around and prosecuting folks who want nothing more than to relieve their pain and suffering, citizens on federal juries might revert to a tried-and-true tactic that has been around since printer John Peter Zenger was acquitted of sedition and libel in 1735 - jury nullification.

Let's see if the feds have the gumption to open this can of worms.

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