Updated, revised, completely rewritten:
"Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana..."
Senators Durbin, Leahy and Jeffords are doing something about that, even though it only relates to jury instructions.
In his statement introducing the legislation, Durbin noted, "This is a narrowly-tailored bill... Under this legislation, defendants in the ten states with medicinal marijuana laws could be found not guilty of violating federal law if their actions are done in compliance with state law."
Having been accused of some intellectual inconsistency on this issue, I have to admit that informing juries that the defendant is being prosecuted for doing something that's legal under state law but illegal under federal law is, well, inconsistent.
Which, in the eyes of the Court, is the issue: not the merits of the drug itself but the question of federal supremacy. The Washington Post has a decent law for the layperson article. States rights has a long and mostly ugly history (much like its partner the filibuster) and I'm hesitant to dock in that port. I guess if I like federal supremacy for civil rights and (rather tenuously at the moment) choice, the rules say I'm supposed to consistently accept it here.
But try as I may the constitutional law question fades, and the interstate commerce clause becomes secondary for me as I contemplate the sheer immorality of harassing AIDS and cancer patients over their medicine. Whose morality? I don't know, but cannabis is here on this Earth for a reason, and the patients are being forced contemplate their own jurisprudence of civil disobedience.
My preferred approach, of course, remains the full Peter Tosh. But short of that, there's legislation now addressing strictly the medical use issue. Hinchey-Rohrabacher would bar the U.S. Department of Justice - including the Drug Enforcement Administration - from spending any money to raid or arrest bona fide medical marijuana patients. And who would have ever thought I would have found agreement with Dana Rohrabacher on anything, even Van Halen singers.
This story literally illustrates my frustration:
The "objective" journalists of the AP can't resist the little Cheech and Chong dig in the headline. No wonder serious discussion of the issue is nigh unto impossible:
Rep. Barney Frank, D-Mass., first sponsored the States Rights to Medical Marijuana Act in 1995. This year's version has just 30 co-sponsors, relatively few for a bill that is 10 years old.
Frank said many lawmakers don't mind letting the courts have the final say on this particularly thorny issue.
"They wish the courts would make the tough decision, and then they yell at the courts when they do," he said.
"I think support is strong, but people are still frightened a little bit by the politics of it," said Rep. Ron Paul, R-Texas. "If you had a secret vote in Congress, I'll bet 80 percent would vote for it."
And that's my deepest, raging, sputtering frustration on this issue: there is no subject on which I see a greater gap between private views and public policy. Call it democracy? Call it hypocrisy.
The Marijuana Policy Project sees just a slight setback: "What the court has done is continue the status quo: Patients in the 10 states with medical marijuana laws are protected under state law but will continue to risk prosecution under federal law... which means that we must push harder than ever for Congress to change federal law."
It seems that any push other than at the federal level will be just for symbolism, but symbolism is important.
Digby has some interesting thoughts on the jurisprudence, or lack thereof:
If this were a case about, say, a federal law that overrode state laws against gay marriage, I suspect you'd be seeing a slightly different reaction from the wingnuts and probably on the court. The moderates (there are no liberals) upheld federal power over states' rights which is consistent with their position...
The court is operating on the same basis that the political system operates. The liberals and moderates in the minority play by the rules thinking that consistency and intellectual integrity are important and that people will hold it against them if they deviate from their stated position. (And, of course, they are right. Even when they haven't actually deviated from their position they are accused of it and called "flip-floppers.") The shrinking number of real conservatives pay lip service to their belief system as long as it won't affect the outcome: they are subject to the same intimidation as the moderates and liberals if they don't. The right wing radicals just power their way through using any means necessary, willingly taking the help of liberals and moderates who perform the function of useful idiots with their fealty to process and institutional integrity in a time of pure power politics.
That's why a consistent jurisprudence is difficult, on this issue and others. When one side is playing fair and acting on principles, and the other side is playing win at all costs, the people playing fair lose (see Bush v. Gore). Is that right? Course not. But you can't shame people into a sense of fairness if they feel no shame, and sinking to their level means, well, sinking to their level. I hate to give Clarence Thomas credit for anything, but he at least showed a misguided intellectual consistency on this case. It seems for him it was about state's rights, but for Chief Justice In Waiting Scalia, it was about pot.
Politics
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