Let Them Smoke Tobacco

My new favorite law professor Alicia Ouellette summarizes the impact of yesterday's court decision,

which held that Congress has the power to outlaw medical marijuana, even in states that have made its use legal. The case is disturbing because it validates federal oversight of sensitive questions of medical decisionmaking , an area previously reserved to the individual States.
The decision does not bode well for supporters of Oregon's PAS law in the case initiated by John Ashcroft (and now carried on by Alberto Gonzalez), which will be before the Court next fall. The issues in the Oregon PAS case are not identical to the issues in the medical marijuana case, but both involve the reach of the same law (the federal Controlled Substances Act) and state power in medical decisionmaking. Six justices (including the 5 most liberal members of the court), have now interpreted the reach of the Federal government to be broad and superior to that of the States.
Justice O'Connor, who wrote in Quill that PAS is the kind of issue that should be decided by the States, not the federal government, dissented in yesterday's decision. She lamented that the decision allows federal encroachment where previously the law promoted "innovation by allowing for the possibility that 'a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.'" The Oregon PAS statute is clearly such an experiment. It may very well be at risk.

posted Jun 7, 2005 | link | jump to the comments (8)

comments

Mike Keefe of the Denver Post is picking on the wrong justice. Thomas actually dissented from the medical marijuana opinion.

- by Steve Latham on Jun 7, 2005 at 6:31 PM | link

As a both a medical doctor (more than 30 years out of med school now) and a philosopher (just over 10 years post-PhD), I would like to pose a very simple question to which I have yet to hear a rational answer: why should marijuana and other cannabis derivatives be illegal at all? As far as I am aware, there is simply no horrific health-destroying property to be found inmarijuana per se--nothing that makes it any more dangerous than alcohol or tobacco, certainly--and there seems to be a growing body of evidence that it can have a beneficial effect, particularly on the suffering of the terminally ill.
I watched (appropriately named?) Ms. Calvina Fay last night on the PBS news hour applauding the government's right to control the definition of "medicine." Echoes of witch trials and the attempt to stamp out midwifery came to mind, but also a bit of recent history: like in the case of Vioxx, maybe?
Ms. Fay also described the Supreme Court decision as "a victory for parents and children." I would describe it, rather, as yet another victory for hypocrisy, a defeat for any attempt to tell the truth to children--truths such as the fact that marijuana is in no way worse than our society's own favorite "recreational drugs," and the fact that there are substances--such as the inhalants--which really can destroy livers, kidneys, and brains. As our nation's children begin to discover what's what on their own, of course, they will thereby discover all kinds of reasons to disbelieve what their parents have been teaching them--quite a "victory," I must say.
I still have at hand the National Academy Press publication, _An Analysis of Marijuana Policy_, a report of the Commission on Behavioral and Social Sciences and Education of the National Research Council that came out in 1982, which concluded that "a policy of partial prohibition [which I would interpret as something parallel to our current regulation of alcohol--not for children, not for driving] is clearly preferable to a policy of complete prohibition of supply and use." But 1982 was early in the Reagan era, and nothing changed at that time.
Now I am waking up to the fact that it's 2005, and STILL NOTHING HAS CHANGED. How can this be? Why is my generation, which KNOWS better on this as on so many other issues, STILL being "obedient" to an "authority" that has proven itself time and again to be so epistemically and morally bankrupt? I just don't get it--the only answer can be social forces, conformity, fear of taking a stand, dishonesty, denial. It's really pitiful.
Speaking for myself now, I'm really tired of watching this kind of cultural hegemony (and what else could it be?) continue to perpetuate itself unchallenged. Grow up--it's only a plant, damn it, get over it!

- by Ronnie Hawkins on Jun 7, 2005 at 7:12 PM | link

I take back my previous comment. The Denver Post's Mike Keefe made no error--this cartoon of his dates back to 2000, and the first medical marijuana case. May I say, posting a years-old cartoon in the middle of a discussion of yesterday's opinion makes Keefe look kinda bad to anyone who knows that Thomas was in the dissent yesterday....

- by Steve Latham on Jun 7, 2005 at 7:49 PM | link

oops. our graphic arts research department has all been fired. hopefully your note will clarify...

- by Glenn McGee on Jun 9, 2005 at 4:49 AM | link

I've just checked back into this again and I'm (not) surprised to see that Steve Latham's posts are still the only other outside responses to this news item. While it's correct to note the position of Clarence Thomas on the Supreme Court judgment, it's still an academically fine point, and "the merely correct is not yet the true."
I think the marijuana (medical and otherwise) issue is an important one, both in terms of truth (whether or not there really are serious medical consequences of ingesting cannabis that far exceed those of alcohol and tobacco, a point to which many on this blog could authoritatively speak) and in terms of social dynamics (are we going to have a society that is based on intelligent discussion and rational decison making, or are we going have one driven by unarticulated taboo, fear, coercion, and conformity?).
As I look back over the last 30 years, I see a society that took a wrong turn somewhere between Jimmy Carter's attempts to be serious after the first oil crisis and Ronald Regan's return to "partytime!" We gave up on truth and honesty and the courage to ask the hard questions and CHANGE our comfortable lifestyles in light of the answers to them, and we've moved deeper and deeper into denial ever since. The "medical marijuana" decision is just a tiny tip of a much larger iceberg--and being unwilling to enter into a discussion about it is just a tiny instance of what seems to be a very widespread reluctance on the part of our academic community to take a stand and address any issue that might threaten the status quo, even if the cost to human and environmental health, let alone to truth and justice, of failing to do so could be substantial: the cozy relationship between medical research and financial interests, the unknown extent of BSE in America's "beef supply" and its possible relation to Alzheimer-like conditions, the ramifications of the contamination of the body fat of humans and other mammals with persistent organic pollutants on a global scale, the potential for hugely overpopulated urban areas to serve as giant petri dishes waiting to be inoculated with any one of a number of human disease agents--all of these topics come to mind as things many of us probably think about from time to time, but shy away from discussing, probably as a result of subtle, subconsciously perceived social pressures against "rocking the boat."
I keep thinking I've been through this kind of thing at least once before--people's minds were kind of "frozen" in silent conformity and obedience to the reigning power structure throughout the 1950s and early 60s, and then, almost overnight, around 1966-67 or so there was a sudden thaw, like ice melting in the spring, and everyone seemed to be thinking and talking and changing. We need another turn of the cycle like that now, or else perhaps natural selection will just have to come in and do the changing for us.

- by Ronnie Hawkins on Jun 9, 2005 at 8:34 PM | link

Ronnie Hawkins, one reason for the lack of other postings on the issues you raised about medical marijauna and the legal status of marijauna generally might be that you made the arguments so thoroughly and elegantly that there's nothing more to add!

- by Darby Penney on Jun 10, 2005 at 3:54 PM | link

Darby Penney--thank you!

- by Ronnie Hawkins on Jun 16, 2005 at 5:37 PM | link

Everyone(?) knows that one of the definitions of insanity is doing the same thing over and over and expecting a different result each time.
Prohibition of anything to the human animal is just encouraging noncompliance especially as far as recreational activities of most any sort, food or drink is concerned.
But then who ever said the "Government" is sane?

- by Mike Endres on Jun 21, 2005 at 4:44 PM | link