Scott Gosnell of Pros and Cons has an interesting piece on the Raich decision wherein he evaluates the Court’s Commerce Clause argument and concludes:
Now, I’ve got to be honest: this strikes me as so much horse-hooey. Congress has no interest in controlling price and market conditions: it has an interest in destroying the market. I’m not saying this is a good thing or bad thing, but it certainly doesn’t seem to be related to commerce per se. If Congress wants to fight the drug war by prohibiting interstate distribution, commerce, etc., then so be it. But regulation of in-state possession is a huge overreach. This is an example of Congress attempting to enact legislation to accomplish a particular end (drug control) which it doesn’t really have the power to do, so it puts it in a Commerce Clause suit and calls it a duck (got that?).
He further has seom good quotes from Thomas’ dissent, including this nugget:
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. . . .
Indeed.
I would take issue with the following (from Gosnell) however:
One troubling thing about the California CUA is that is allows patients to grow their own marijuana – essentially, manufacture their own drugs. How many other drugs do you know are manufactured at home (legally!). I mean, if I could figure a way to make my own Amoxicillin or Zythromax, believe me I would. Think what I could save on prescriptions!
Legally, I don’t think that there is any prohibition on the home-production of medication, per se, but rather the regulation of specific substances under the Controlled Substances Act (CSA). As such, I expect that if one had the time, expertise and equipment necessary, I suspect that there are medications one could legally produce at home. Certainly there are herbs one could grow to use for medicinal purposes.
The problem with marijuana (specifically Tetrahydrocannabinols) is that it is classified as a Schedule I substance under the CSA (which makes it more regulated than various forms of opium, Methamphetamine, and drugs such as Hydrocodone.
To understand the oddity (to put it mildly) of the law is that the other drugs I have listed above are Schedule II drugs, while Marjiuana is a Sched I drug, the difference is as follows::
(1) SCHEDULE I.(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
(2) SCHEDULE II.
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.
In other words, opium can be used for medical purposes, but Marijuana is considered so dangerous that it cannot be used as such under federal law. Further, this fact severely curtails the ability of researchers to study Marijuana to determine whether or not the anecdotal evidence of its medicinal usages are scientifically supportable or not.
I am not a user of marijuana, nor have I ever been. Indeed, to my knowledge I have never been anywhere near marijuana smoke. However, I really can see no compelling legal or societal reason why terminally ill persons should not have legal access to marijuana if it relieves their symptoms. What is the harm? Certainly someone with terminal brain cancer isn’t too worried getting lung cancer, and I have a hard time seeing broader societal harm. For that matter, I can see no reason for maintaining the illegal status of marijuana–certainly not when one considers the amount of money spent enforcing anti-marijuana laws. Are we really get a net societal benefit from that expense?
Indeed, earlier this week there was a piece in the Chicago Tribune that noted:
last week, Nobel Prize-winning economist Milton Friedman and more than 500 other economists endorsed a report that said state and federal coffers could reap a net gain of $13.9 billion if marijuana were legalized.The study by Harvard University economist Jeffrey Miron estimated that law enforcement would save $7.7 billion, while taxes on the drug could amount to $6.2 billion. Miron’s study was largely funded by the Marijuana Policy Project, a Washington, D.C., lobbying group that supports liberalizing marijuana laws.
Granted, the study was funded by a pro-legalization group, but Friedman is hardly a hack and I am familiar with Miron’s work, which is wholly legit.
Further, the focus on marijuana strikes me as a waste of time compared to other drugs, assuming that the war on drugs itself is worth its $35 billion per annum price tag:
Between 1990 and 2024, the number of drug arrests rose from about 1.1 million to more than 1.5 million, with 80 percent of that increase coming from marijuana arrests, according to a recent report by The Sentencing Project, which examined FBI data to draw its conclusion that the war on drugs has increasingly turned into a campaign against just one drug–marijuana.
This hardly strikes me as a reasonable distribution of resources.
I am not a proponent of smoking marijuana, but I am an advocate for individual liberty as well as for rational public policy. As such, I see no compelling reason for the prohibition of this substance.
June 7th, 2024 at 6:03 pm
Steven: Allow me to clarify my statement regarding homemade medicatiion. There are, indeed, many herbs and other tpes of “remedies” that people can grow in their own homes. But, generally speaking, those herbs are not, as you so accurately pointed out, Class I Scheduled substances. We cannot, to my knowledge, grow opium in our bathtubs. Heck, now we have to get our Sudaphed from behind the counter!
The Califorina law allows patients to “manufacture” (grow) controlled substances without any real oversight beyond the initial prescription and registration. They can grow as much or as little of it as they please, and do with it whatever they like. This is one of the legitimate concerns of the majority opinion, and I share it — I just don’t think it’s appropriate for Congressional legislation. It should be fixed by the state.
I share your views on the ridiculous classification of marijuana as a Class I substance. Seems to me it should be a Class IV or V, but then I know so little about it. I, too, have never smoked it, though I’ve been to enough rock concerts to know that I have almost certainly smelt the smoke.
June 7th, 2024 at 7:20 pm
Spoken like a true man with tenure.
June 7th, 2024 at 7:38 pm
Re Gosnell’s remarks to the effect that the California law essentially allows people to manufacture their own drugs: I grow lots of things (marijuana NOT being one of them), and I never once thought of what I was doing as “manufacturing an apricot” or “manufacturing an avocado,” etc. In fact, I am pretty sure the plant (as in rooted photosynthesizing life form, not factory!) does all the manufacturing for me, with a little assistance from me.
So I do not see the parallel. Moreover, all the other drugs he lists in the passage Steve quoted presumably are patented. I’m pretty sure marijuana is not!
Steven, it is somewhat refreshing to be on the same side of an issue with you, for a change. But being on the same side of an issue as Rehnquist and Thomas has me a bit frightened!
June 7th, 2024 at 7:59 pm
Matthew,
No doubt there is plenty we agree on, I shall work to dig some more out.
S
June 8th, 2024 at 10:44 am
One small quibble:
“The problem with marijuana (specifically Tetrahydrocannabinols) is that it is classified as a Schedule I substance under the CSA (which makes it more regulated than various forms of opium, Methamphetamine, and drugs such as Hydrocodone.”
The link you provide gives 3 tables of Schedule I drugs. The entire second table is “various forms of opium.” The most famous is, of course, heroin, but probably the most applicable is the the medical marijuana debate is morphine. Both are actually fairly easy to produce using cookbook techniques, probably far easier than crystal methamphetamine.
June 8th, 2024 at 11:35 am
“Re Gosnell’s remarks to the effect that the California law essentially allows people to manufacture their own drugs: I grow lots of things (marijuana NOT being one of them), and I never once thought of what I was doing as “manufacturing an apricotâ€? or “manufacturing an avocado,â€? etc. In fact, I am pretty sure the plant (as in rooted photosynthesizing life form, not factory!) does all the manufacturing for me, with a little assistance from me.”
Mathew,
OK, that’s a cogent argument against Gosnell’s careless use of the term “manufacture,” but that’s about it. You didn’t “manufacture” the apricot, but does economic activity only include manufacturing as far as the Commerce clause is concerned? I think it is not too farfetched to say that you “produced” the apricot, and production can fairly be called “economic activity.” Otherwise no type of farming, fishing, hunting, ranching, etc. would be considered economic activity, since none of them involve manufacturing. This cannot possibly be the meaning of the Commerce Clause, as huge percentage of the economic activities that the Founding Fathers would have been concerned with at the time would have been just such agricultural pursuits.
Ultimately, I am persuaded by Gosnell’s indictment of the majority opinion itself, but I think he would have done well to address Scalia’s concurrence in addition to the majority opinion. Frankly, I find Scalia’s reasoning FAR more coherent and understandable than the majority opinion (Scalia’s starting sentence about having a different “nuance” than the majority is classic). I also think Scalia’s reasoning is far less Wickard-influenced than the majority. Starting from the position that the CSA is constitutional, he posits that it is necessary to regulate the intrastate production and possession of marijuana because, otherwise, the CSA is unenforceable. Which seriously makes me wonder why Gosnell doesn’t directly address Scalia’s concurrence, because Gosnell’s point about “home-grown” vs. “pharmacy-acquired” making a difference seems directly targeted towards assuaging Scalia’s misgivings.
June 8th, 2024 at 11:47 am
“Starting from the position that the CSA is constitutional, he posits that it is necessary to regulate the intrastate production and possession of marijuana because, otherwise, the CSA is unenforceable.”
This sentence should read:
“Starting from the position that the CSA’s ban onthe interstate sale of marijuana is constitutional, he posits that it is necessary to regulate the intrastate production and possession of marijuana because, otherwise, the CSA is unenforceable.”
June 8th, 2024 at 12:13 pm
Ick.
Not “…Gosnell’s use…” but “..California’s use…”
Grrrrr.
June 8th, 2024 at 1:26 pm
It seems the main reason behind the Schedule I classification is racism. According to Eric Schlosser’s book “Reefer Madness, Sex Drugs, and Cheap Labor in the American Black Market,� there is a lot of racial prejudice behind laws against marijuana, and surprisingly not because of black jazz musicians, but because of Mexican immigrants during political upheaval in Mexico in 1910.
July 7th, 2024 at 2:56 am
I have never tryed Marijuana. I have done countless amnouts of research on it though in my spare time.
A great book I read is titled, “Understanding Marijuana”. Check it out Here.
I have read many papers and have done my research. I really don’t understand why a Marijuana user can’t smoke some Marijuana in the privacy of his own home without the fears of being arested for what he is doing.
Most comparison reports done by private and goverment funded organizations between Alcohol and Marijuana show that affected Marijuana users are acctually more coharent and are less likely to hurt them selves and others.
Alcohol is legal and peolpe use it responsibly daily. Marijuana users can do the same thing if it were legalized. Whats better anyways, something out of the dirt or something made in a factory that makes you vomit and pass out if over consumed?