The Legal Jan

William F. Buckley
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Posted: May 16, 2001 12:00 AM
It is a big confusing sprawl of a judicial system, but there are those who love it, and it takes lifelong love for our system, after weighing the Supreme Court's decision. The anomalies knock you down, but there is still light.

We have, in California, the principal exfoliate of United States vs. Oakland Cannabis Buyers' Cooperative, No 00-151. It is this. If you grow marijuana in California, you can't be arrested by state troopers, but you can be arrested by federal agents.

Proposition 215, which carried California by plebiscitary vote in 1996, authorized marijuana under medical prescription. The 9th Circuit Court then handed down a decision denying the right to prosecutors to pull in marijuana distributors whose clients were patients of doctors who authorized marijuana.

Last June, Peter McWilliams, the young author, poet, libertine/libertarian, died in medical duress. He had AIDS and got relief from marijuana, but the feds brought him in, stuck him in jail, released him on bail-with-urine-tests to verify that he was not taking marijuana, the only palliative that gave him relief from pain; and he died. One doesn't die from not taking marijuana, any more than one dies from taking it. But what creeps into the case, of course, is the concept of medical necessity.

Justice Clarence Thomas, who wrote the majority opinion, wasn't endorsed by three of the justices, who wrote their own concurring opinion. The reason for it was Justice Thomas' insistence that marijuana has no unique medical purpose. This statement is dumbfoundingly outrageous to anyone who knows from personal experience that the drug gives unique relief to some sufferers.

What Justice Thomas, and others, correctly did was to acknowledge the authority of Congress as exercised in its Controlled Substances Act of 1970. This act decreed that marijuana was a Schedule 1 substance and therefore forbidden for use. The court's indulgent handling of Congress is a welcome deviation. Yes, Congress said it; yes, Congress has the authority to rule on drugs; no, California distributors may not legally sell the drugs. So where do we go?

That question is politically and constitutionally interesting to residents of Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington, which have passed laws permissive in orientation on the question of marijuana. And it is of intense medical interest to people suffering from debilitating symptoms of AIDS, epilepsy, glaucoma, multiple sclerosis and chemotherapy.

California's attorney general, who backed the Oakland cooperative, regrets that the federal government is standing in the way of "California's historic role as a 'laboratory' for good public policy." That statement was a little unguarded, coming from a spokesman from a state that has served as a laboratory for every kookiness of the past hundred years; but the question of states' rights is implicitly very much there.

Justice John Paul Stevens raised the point explicitly, wondering whether the majority opinion showed enough "respect for the sovereign states that comprise our federal union." Thomas replied witheringly to his colleague: "Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it." Correct. But inasmuch as we are talking only about one federal law, easily modifiable, the question of political leadership arises.

And here we have a precedent. While governor of Texas, George W. Bush opposed legalizing marijuana for medical use, but deferred to individual states to make their own decision in the matter. "I believe each state can choose," he said in 1999. So then that avenue is open: a congressional modification of existing laws.

But another window is there, the medical-necessity question. It is already acknowledged that federal prosecutions of marijuana users who are manifestly beneficiaries of the drug aren't going to appeal to many California jurors. With the result? That there simply won't be any prosecution of individual users.

How will they get the proscribed drugs, now that the cooperatives are closed down? That is a silly question. How does anybody who wants pot get it? How did they get booze during Prohibition?

Those who enjoy legal theorizing can come up with the argument that to deny someone a pain-reducing or life-enchancing drug is to deny due process and the right to life. These are airy flights of constitutional theorists on highs, but they do accost the basic question whether Peter McWilliams was a better judge of medical palliatives for his ailment than Congress or the Supreme Court.

So it all crowds around our federal system. State laws, state plebiscites, congressional laws, Supreme Court interpretations, constitutional epiphanies. It is very red, white and blue, and, we repeat, there are those who love it.