Surveying the Garden of Delights it's made of the Constitution, the Supreme Court today noticed a tiny shoot of federalism, mistook it for the Demon Weed, and ripped it out by the roots. Some years ago California, and a few other states, passed laws allowing the use of marijuana for medical purposes. California's law allows marijuana to be used by prescription if a physician determines that the drug would assist patients suffering from "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Two ladies in California were, pursuant to this law,
[B]eing treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat [their] conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, [one woman's] physician believes that forgoing cannabis treatments would certainly cause [her] excruciating pain and could very well prove fatal.California, in the exercise of its sovereignty, has determined that this is a proper use for marijuana. The federal government, in its voracious appetite for power and its horror of bad publicity, has determined that these women and their physicians ought to be doing hard time.
It's a very simple equation. On one side, you've got a state which has made an unpopular law. It's the kind of law that might be inspired, or kind, or absolutely silly; but it has the defect of terrorizing and inflaming the members of MAUUL, a shadowy organization which, I believe, is presently tyrannizing the whole country. MAUUL stands for Mothers Against Unwise Uses of Liberty, and it swings into action on a raft of issues, pushing for laws, laws, and more laws to prevent people from making any imprudent use of the great blessing of liberty. Sex discrimination is such an abuse and so MAULL -- which files lawsuits whenever two men drink together without "including" a woman in their discussion of basketball and prostate cancer -- is proud to note that Oliver Cromwell was one of its founding members.
Cromwell was a paragon of MAUUL's program. He found that pipe organs made worship pleasant, and ripped them out of England's Churches. He slaughtered the Irish by the bushel because they drank spirituous beverages, gambled, and told one another long, sad poems about the kind of weird and strange things you see in video games. And when Parliament wanted to abuse its great blessing of liberty Cromwell, in a triumph of MAULLism, turned England into a military dictatorship run by pure generals with pure hearts. His legacy lives on in the fervent faces of children who shout anti-drug slogans, dump used cigarette butts they've collected inside the premises of businesses which permit smoking, and rat their pot-toking parents out to the police as part of their school's "Dare to Be Drug Free - Exterminate the Wreckers" campaign.
The typical MAULL member is someone who, upon reading Orwell's description of the Anti-Sex League, wonders if he or she might not borrow the idea to serve a similar noble cause using strips of brightly-colored ribbon. The idea's not Orwell's -- Cromwell's army wore sashes, too. MAULLers insist on setting themselves apart from all the hell-bound backsliders who drink sherry, smoke cigarettes, and eat food that pads the arteries. Hence the lime-green boutonniere for "Tertiary Syphilis Awareness Week," the puce-and-teal corsage of "Food Kills You Month," and all those mendacious self-tests that diagnose your alcoholism if you even thought about answering "yes" to, "Do you find that alcohol consumption makes social gatherings more pleasant?"
These are the forces that confronted the Bush Administration with a terrible dilemma. Should it offend the New Model Army of MAULLers, and risk being labeled -- gasp!! -- soft on drugs? Or should it cosset two dope-toking Californian cancer patients and their fifty-seven cats? Acting with the same astonishing vision it has displayed toward illegal immigration, the Administration concluded that if it could pretend 50 million Mexicans weren't using a cheese-cloth border to unwrite the Treaty of Guadalupe-Hidalgo, it could certainly pretend that California wasn't actually a state with its own constitution, laws, and sovereignty.
To the measured chanting (cheering is unruly and may lead to smoking, drinking, and the consumption of White Castle hamburgers) of MAULLers everywhere, the Administration announced that the only laws in America are federal laws, and since federal laws won't let physicians prescribe marijuana as a palliative for the constant vomiting induced by chemotherapy, Californians who dared to act as though they lived in a state rather than a French Department were going to lose their livelihoods and their liberty. Like Cromwell's parliament, California's backsliding legislature need not be tolerated when pure generals (now of the Attorney kind) are ready to leap on horseback and ride the land, vigilant for outbreaks of international terrorism and Reefer Madness.
So our pot-toking ladies did what anyone suffering from the disappearance of representative government would do. They tried to find bigger, stronger major generals to oppress the oppressors. In short, they sued, being very disappointed to learn that standing didn't exist for any of their fifty-seven cats, not even the Jellical one. After years of litigation, their appeal reached the last group of generals capable of defeating the Cromwellians.[1]
Of the nine, seven were commissioned by a political party which talks a lot about federalism. One of its leaders actually kept a card in his pocket, upon which was printed the Constitutional mandate that all powers not granted to the national government were reserved to the states. He took it out from time to time to remind him to put it back in his pocket. Other members of this party perpetually rail in print and elsewhere about unelected elites foisting their illegitimate personal priorities on the rest of us hard-working Americans.
This party has been saying for fifty years that the era of big government is over, really over, finally and completely over, honest, just as soon as they fix everything wrong with every hospital, fire department, swamp, social club, family, classroom, and outhouse in America. So there was hope, of a sort, that enough of the seven generals had heard of their party leader's card and would act accordingly to recognize that the United States is a federation of sovereigns, not a corporate flow-chart that relegates California to the box marked "Vice President for Community Affairs."
Alas, it was not to be. The armies met in the fall of 2004, and four of the seven generals donned MAULL sashes, stroked their chins, and opined that since marijuana might be very, very bad, nobody but the federal government had any business making laws about it. They were joined by two other generals from a separate faction, both of whom wondered why the issue was being joined, inasmuch as California's only constitutional function was to allocate electoral votes. Only three generals saw the right, and one of them was a surprise. Justice Sandra Day O'Connor has not been kindly treated by the Dossier, not since she wrote an execrable tract in Planned Parenthood v. Casey that sounded more like an addled sophomore's year-book entry than a judicial opinion. But she managed to put her finger close enough to the instant matter:
We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961).I dislike the last part because this case is about sovereignty, not a national policy of bad parenting that intends to let the kids make their own mistakes until things go too far. I certainly hope that's why Justice Thomas, who is quickly becoming my personal hero, and Justice Rhenquist joined her in dissent but refused to put their names to this part of her opinion.[2]
Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
The fabled legal scholar Lino Graglia liked to tell a story which, he said, illustrated why federalism cannot survive in the United States. It involved, if I remember it right, Debbie Reynolds who, after a lifetime as an FDR liberal, became persuaded that Ronald Reagan's vision of American government was more wholesome and correct. In several talks with Graglia -- also a Reagan supporter -- she came to see the evils of judicial activism and rampant nationalism. Until, at least, the day she asked Professor Graglia to sign a petition urging Congress to make it a federal crime to mistreat a cat. When he exclaimed that this was exactly the kind of thing the Constitution doesn't allow, Reynolds exclaimed, "But Lino, this is important!"
Drugs are important. So is the national crusade to reduce American life to a uniform specification written by corporate executives who understand that federalism is a messy business that plays hob with the actuarial tables; national politicians who know that federalism makes their own jobs less important; and a host of national busybodies who'd much rather scream at Bill O'Reilly and Sean Hannity than persuade their neighbors to do something. You can't blame them, really. It must be great fun being a major general.
Now you must excuse me. I have to make a yellow, grey, and brown sash for "Naps are Naughty" day. And don't forget next week's the Great Nap Out, when we all go 24 hours without closing our eyes to draw attention to the addiction that's eroding our national competitiveness . . . . .
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[1] The case is Gonzalez v. Raich, No. 03-1454. The decision of the Court is available online (in PDF format) here.
[2] Justice Scalia was not among the federalists; no doubt he consulted "canonical experts" to learn that, as with the ordinary magisterium of the Roman Catholic Church, the Constitution's bill of rights merely expresses the prudential opinions of the founders which do not in any way prevent him from ruling as he likes.
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