In the rush to cure all the ills to which humans are heir, liberty is too often an innocent bystander — and an accidental casualty. –Barry Goldwater, 1964
The Supreme Court handed in their black robes for brown shirts yesterday, as that formerly august body decided 8-0 against a medical exemption for marijuana, ruling that federal law trumps state initiatives to legalize the substance for treatment of illnesses such as AIDS, cancer, multiple sclerosis and glaucoma.
“It is clear from the text of the [Controlled Substances Act] that Congress has made a determination that marijuana has no medical benefits worthy of an exception,” Clarence Thomas wrote for the unanimous majority.
Had Justice Stephen Breyer not recused himself because his brother, U.S. District Court Judge Charles Breyer, presided over the initial case, it probably would have been a 9-0 ruling. Charles Breyer sided with government lawyers against medical marijuana when he heard the case.
“The Supreme Court’s ruling against medical marijuana was no surprise, and it shouldn’t be held against the court,” wrote Andrew Sullivan in his May 14 Daily Dish column at AndrewSullivan.com. “The ruling clearly defers to a congressional statute, which clearly outlaws medical use of marijuana.”
The ruling may be no surprise, but Sullivan is still wrong about at least one thing: Of course it should be held against the court.
Apparently, Clarence Thomas and Co. forgot a slightly more important statute than the Controlled Substance Act — the Constitution of the United States! Remember that one? I think it’s still mentioned in high-school civics classes.
Grab a copy if you have one handy and open that grand, national operating manual to Article 1, Section 8. This section lays out in very clear terms the enumerated powers of Congress — what our representatives are permitted to do. (Pay attention, Clarence.)
There are not many items listed, and you’ll probably notice the striking absence of anything about regulating marijuana — or any drugs for that matter. It’s not in there. Establishing postal roads, declaring war, coining money — that much is enumerated, but not a word about dope.
The reason why this is important can be found by thumbing back a few pages to the Preamble. It states that “We the people … do ordain and establish this Constitution of the United States.” In other words, the federal government’s power is delegated to it by the people; as far as the Constitution is concerned, we set up the central state.
Those enumerated powers in Article 1, Section 8, limit the government precisely because they are enumerated — that’s all the power we the people delegated. And just to make sure the Congress would mind its manners, the founders — most of whom trusted the state as much as a pack of wild dogs — reiterated what they meant in Amendments 9 and 10 to the Constitution.
Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Amendment 10 (the one Bob Dole claimed he kept a copy of in his suit pocket but obviously never read while in Congress): “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
In short, the Supreme Court got it exactly backwards. The right to control substances for any purpose, medical or otherwise, is nowhere given to the feds in the Constitution — which means it’s up to the states to decide, not Congress. The Controlled Substances Act can’t trump state initiatives to legalize pot because the states trump the feds wherever a governing role is not clearly given to the boys of the Potomac, and none is. Instead of siding with government lawyers, the Supreme Court should have simply ruled that no medical exemption is needed to protect marijuana users from federal prosecution because there’s no legitimate federal law under which to prosecute them.
So I say Sullivan is wrong. We should blame the court. We must blame the court.
The Supreme Court did much more than rule against medical marijuana yesterday. It validated and empowered the bastard state — the illegitimate, ham-fisted authority that is slowly choking the life of our constitutional republic.
Tarring and feathering the noble justices in effigy might be a nice place to start in response to this outrage — it’s a very founding fathers sort of thing to do, in fact. But where we need to focus is where Sullivan is dead-on right, in saying this ruling is “a pretty obvious case of conservative hypocrisy on states’ rights.”
States rights, said Barry Goldwater, “is a check on the steady accumulation of massive power in the hands of national bureaucrats. In these days of ‘instant crisis,’ both real and manufactured, it may be the only effective check.”
Not effective enough apparently. These days, when jackboots replace wingtips on the bench, states rights get the heel, and statist absolutism kicks genuine federalism out the door into the cold dark night.
“Let us never forget that it was our sovereign states that joined in a compact of defined and limited national powers to forward the general welfare, and to preserve and enhance the freedom of every single American,” said Goldwater. “We must not now abandon this wise blueprint of freedom and balanced authority.”
Goldwater said that back in 1964. I only hope we’re not too late.