Wall Street Journal deputy editor Daniel Henninger decodes the Supreme Court decision against state laws on medical marijuana.
The Supreme Court's liberal bloc--Stevens, Ginsburg, Souter and Breyer--ensured Monday with the support of Justices Kennedy and Scalia that people sick from cancer treatment will have to think first about a house call from the federal drug police before using marijuana to relieve their symptoms.Liberalism to cancer patients: Drop dead.
Meanwhile, dissents on behalf of medical marijuana were written by Sandra Day O'Connor, a cancer survivor, and Clarence Thomas, whose nomination was fought by recreational pot users.
Medical marijuana sounds simple. Cancer patients receiving chemotherapy often endure extreme nausea, and many say that smoking marijuana during chemo makes it bearable. Many of us know sober folks who have done this. So why is this a Supreme Court case? Because this is America, where nothing is so simple that it can't be turned into a federal case.
If the Court's four liberals had ruled in favor of state laws allowing medical marijuana, which federal law forbids, that precedent would have helped conservative efforts to reduce federal clout in other areas, such as environmental authority in the West. Thus Justice Stevens wrote that the Controlled Substances Act, a Nixon-era law, "is a valid exercise of federal power, even as applied to the troubling facts of this case." Liberals with cancer should take solace in knowing they will be vomiting to save the snail darter.
UPDATE: Physician-turned-pundit Charles Krauthammer has more thoughts on politics and constitutional law.
Justice Thomas: "Dope is cool."Posted by Alan at June 11, 2005 01:10 AMJustice Scalia: "Let the cancer patients suffer."
If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on medical marijuana in California.
The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.
It was about what the commerce clause permits, and even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent. Thomas says: the Founders, as best we can interpret their original intent.
With Thomas' originalism at one end of the spectrum and Scalia's originalism tempered by precedent — rolling originalism, as it were — in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
This is what our debate about judges should be about.