The Court on High

William F. Buckley
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Posted: Jun 07, 2005 12:00 AM

The Supreme Court did what conservative court-watchers should welcome. It looked the California situation in the face and said: If Congress doesn't like the law, let Congress change it, but don't look to the Supreme Court to improvise on the drug laws.

There are now four collateral movements in the matter of the use of medical marijuana where individual states have authorized it:

1) Federal prosecutors are free, after this clarification from the Supreme Court, to proceed to arrest users, on the grounds that the law is the law.

2) The plaintiffs in the current case were two ailing women. Having lost with the Supreme Court, they have said that they intend to continue to use marijuana. One of them said that, actually, she has no alternative, because if she doesn't take the drug, she will simply die.

3) Observers sympathetic to the state laws allowing marijuana for medical purposes take comfort in realism. There aren't enough federal prosecutors in town to move against all the users. One estimate is that only one percent of such transgressions is actually meeting up with intervention by the federal constabulary.

4) In his opinion, Justice Stevens hinted that there were two ways to address the deadlock. The first and most obvious, of course, is for Congress to revise the current statute to make the exception for medical marijuana. But there is another approach, namely for the Executive to reclassify marijuana for medical purposes.

How will these sentiments and inclinations fare?

The easiest way is to treat laws banning medical marijuana about as anti-sodomy laws were treated for generations: Don't repeal them, but don't act on them. There is a theoretical objection to this escapist remedy ? we like to think that laws are there to be obeyed. But to proceed under its empirical protection is an easygoing solution to hard, conflicting pressures.

The relief ? hinted at by Justice Stevens ? that might be got by the Executive's adjusting the proscribed list to permit medical marijuana is opposed by the hardliners in the administration.

These ? in particular John P. Walters the drug czar ? are relying on dogmatic positions which especially outrage those who have had relief from marijuana during their illnesses. Mr. Walters takes the position that it is not medically established that marijuana uniquely grants such relief as is being touted. Nothing is more infuriating to a person who has been relieved of crippling nausea than to be told that he has not been relieved. It is almost predictable, for reasons of political harmony and acuity, that the administration will dodge that problem by simply ? doing nothing.

What is depressing is the dim prospect of remedial congressional action. Individual congressmen shun the idea of licensing any use of marijuana, unless they can find a way to say that marijuana eliminates income disparity. But in search of political consensus on the matter, there is nothing clearer than the vote of the legislatures of the ten states that authorized medical marijuana. They did so and survived political vicissitudes. If these ten states can take a progressive position on medical marijuana why can't Congress do as much?

There is opposition to be sure from more sophisticated observers. What they are saying is that the whole medical marijuana argument is something of a phony. It is certainly true that a lot of people who would like to use marijuana will go to lengths to feign a medical reason for doing so.

But if a federal prosecutor is bent on practicing his profession, he is in a position to establish that the doctor whose name the scofflaw is citing as having prescribed marijuana ? didn't really do so, or did so in such ambiguous terms as to persuade the jury that the marijuana user is in contempt of the law. On this front, the permissivists have an eloquent martyr, the late Peter McWilliams who ardently championed looser laws, who himself depended on marijuana for relief from the nausea caused by AIDS ? and who died during a period when he was under court scrutiny, pending sentencing, and had to do without the drug.

Taking marijuana when young is a stupid thing to do, but the young generation is not (yet) suffering from cancer and AIDS and other diseases from the ravages of which they might find relief, if they can dance through the congestion of laws and opinions that beset us.