Baseball Crank
Covering the Front and Back Pages of the Newspaper
March 15, 2007
LAW: No Fundamental Right to Medical Marijuana - Yet

The Ninth Circuit, on remand in Raich v. Gonzales (9th Cir. March 14, 2007), held yesterday that there is no fundamental Constitutional right to smoke pot, no matter how sick you are - but there might be later, once we have all expanded our minds just a little more:

Though the Lawrence [v. Texas] framework might certainly apply to the instant case, the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence.


We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” ... For the time being, this issue remains in “the arena of public debate and legislative action.” ...

As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Translation: they will let us have our democracy a little while longer. Note that, as usual, the discussion assumes that the meaning of the Constitution can be changed by legislative action of a number of states that is smaller than the number expressly required to change the Constitution itself in Article V.
Granted, had the Supreme Court held - as it should - that the regulation of purely intrastate pot sales and use is beyond Congress' Commerce Clause powers, this issue would be where it belongs, with individual state governments. But in any event there is no warrant for declaring that a fundamental constitutional right is being grown under the Ninth Circuit's heat lamps.

Posted by Baseball Crank at 8:01 AM | Law 2006-08 | Comments (12) | TrackBack (0)

This is one of those issues on which judges earn their money. On one hand there is the desire to allow people to be comfortable and on the other the need to preserve the Constitution.

I find it difficult to believe a pain releiver can not be derived from pot that does not violate controlled substance laws.

Crank, I agree with you that this is probably a states issue, but I think that opens a bag of worms too.

Posted by: maddirishman at March 15, 2007 10:10 AM

Hemp was demonized by William Randolph Hearst, who owned lots of paper mills and such, and hemp based products threatened to reduce those holdings to nothing. Edison tried to do that with Alternating Current; that it was dangerous, look at the electric chair.

However, I agree with you Crank. When you grow the grass home, and serve it up in your state, then Congress and the US government has no right to regulate it. And Irish, from what I've read, marijuana is a very complex series of organic compounds, and as is usual with nature, we can only synthesize so much before we fail to replicate it.

What we will find if the states vote on it, like abortion, we will get different laws in different states. Well, we have that now all the time, and the Republic has managed to survive. Age of consent, age of driving, different taxes and services. Real estate laws. It makes us stronger in the end, not weaker.

Posted by: Daryl Rosenblatt at March 15, 2007 10:29 AM

More Rudy in drag. Sheesh ... this guy has almost as many pics of him in drag floating around out there as Paris Hilton does of her without panties on.

Posted by: Dick Flatts at March 15, 2007 10:56 AM

maddirishman--why would you derive a substance from pot when you could just use pot? Surely anything derived from pot would be just as illegal for people without a prescription? There are plenty of drugs that are illegal without prescriptions, the idea that marijuana can't be one is frankly absurd.

FYI, It's also not a "pain reliever," marijuana is more often used as an appetite stimulant, and to decrease nausea.

Posted by: beedlebaum at March 15, 2007 11:19 AM

The main point of the post is not whether medical marijuana use is a good or bad idea, nor whether the federal government has authority to regulate it as opposed to the states. I think Crank's main concern is that the Ninth Circuit not only treats medical marijuana as a Constitutional issue -- the Constitution is silent on medical treatment -- but seems to want to declare it a Constitutionally protected activity. The court implies that once everyone agrees something is or is not a good idea, it becomes Constitutionally protected. Such an expansive reading takes social issues out of the democratic process. For example, if a legislature passes a law saying that anyon who does the hokey pokey on Thursdays must wear a lime green tunic, it may be a ridculous law, but unreasonable does not equal unconstitutional. Under our Constitutional framework, the proper redress for such a law would be to elect new legislators, not rewrite Constitutional jurisprudence to find a Constitutional right to do the hokey pokey on Thursdays without wearing a lime green tunic.

Posted by: WD at March 15, 2007 12:38 PM

I will support anyone who campaigns on the "Hokey Pokey" Platform.

Posted by: abe at March 15, 2007 1:45 PM

Beedle, if you check in the case part of the treatment was for chronic pain disorders. The reason to try to derive from pot is maybe you can get the benefit without some of the sideeffects. As for the perscription, medical pot can only be received with a perscription.

Posted by: maddirishman at March 15, 2007 3:18 PM

I can tell you from my daughter's chemo, that nausea is a major issue, and that from what I've read, marijuna is a better med for it than the others now prescribed. However, to me, the main issue is that the constitution exists to limit what the government can do. Nowhere in my copy does is say it can regulate medical issues. It can regulate interstate commerce, but if you grow it yourself, or buy it from someone in your state, then the feds are not permitted to regulate it. It's the abortion argument really: I never thought it was a privacy issue, but a state issue, and should then be argued on that level. I think it should be permitted, but that's me.

We are unique: our main set of laws tells the government what it can do, not what we can do. And I don't want anyone doing otherwise.

Posted by: Daryl Rosenblatt at March 15, 2007 7:27 PM

Wherever you fall on the state's right issue - the key is consistency. Otherwise you're just a hypocrite. In other words all those people up in arms that the courts took away the state's right to ban abortion, should be equally horrified when courts strike down right to die laws (paging Terry Schavio.)

Now Crank are you equally disdainful when the Federal government stretches its dilineated powers and preempts state laws that legalize marijuana? To be honest, I am still not sure how the Federal government can punish the local small businessman for firing a minority (but nobody will ever challenge that.)

Posted by: PatrickG at March 16, 2007 8:52 AM

Surely a rich country like the US can afford to provide high quality weed, as a matter of Constitutional right, to all its citizens.

Posted by: John Salmon at March 16, 2007 9:24 AM

I have a cousin that needs a kidney and goes through dialysis four times a week. Dude uses marijuana to keep his weight up, and although could not be prescribed to him, his doctor "unofficially" suggested it, as he has difficulty ingesting medicines (but marijuana as an inhalent is very efficient). Regardless of whether it is a Constitutional question or not, it is certainly about time that doctors get the freedom to treat the sick in the most effective manner possible.

I'm not a smoker myself, but I do think our drug laws are just plain silly. They are political reactions to the 1960s. Just one more reason to not be a right winger.

Posted by: AstroFan at March 16, 2007 10:35 AM

I would argue that not only are drug laws antiquated in many ways (60's reactionary crapola) but they are kept in place for financial reasons (pot cannot be synthesized so there is no $ in it for the pharmaceutical giants).

Posted by: jim at March 16, 2007 12:48 PM
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