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Jewish World Review May 16, 2001 / 23 Iyar, 5761

Debra J. Saunders

Debra J. Saunders
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Big Bench backs might over right -- THOSE of you who cheered last year when federal agents stormed the home of the American Gonzalez family to spirit away young Elian -- because the Gonzalezes shouldn't be allowed to flout the law -- should love the U.S. Supreme Court ruling against medical marijuana and the Oakland Cannabis Buyers' Cooperative.

Oops, I forgot. We in the San Francisco Bay Area can flout the law because we're better than other people.

And in this case (as with Elian, I would argue), voters at least flouted the law within a legal framework and for a good cause.

Even Candidate George W. Bush, who said he opposed medical marijuana, said he supported states' rights to pass medical marijuana laws. Hope he doesn't change his position now -- the White House was cagey when asked if he had -- because if he does, armed federal agents could be sweeping into your town soon.

Go back to 1996, when 56 percent of California state voters approved Proposition 215, which legalized cannabis clubs for people with notes from their doctors. Fact is, while the pro-215 campaign banked on stories of very sick people whose pain was eased by pot, some backers and clubs used the law to shield their recreational use. They don't get points for honesty. Or legal scholarship. (They knew they were defying federal law. They still know it, yet argue that Monday's decision will have no effect on state laws that allow residents to grow their own.)

Meanwhile, people with cancer, glaucoma and AIDS were able to take a drug that eased their very real pain. That made the fight worthwhile.

Proposition 215 lawyers argued that the sick's "medical necessity" overrode federal law. Lower courts agreed and disagreed. On the one hand, Congress classified marijuana as a Schedule 1 drug, the toughest category under the Controlled Substances Act. There is no exemption for states that don't like the law.

Justice Clarence Thomas wrote that "medical necessity" did not override federal authority. The only allowable use of marijuana then, he wrote, entails government research projects. He also noted -- correctly -- that courts are not supposed to write laws. He quoted a 1980 decision that noted, "We are 'construing an act of Congress, not drafting it.' " He carried the court 8-0.

So what of the eight states that passed medical marijuana laws? Eric Sterling of the Criminal Justice Policy Foundation hopes those states' members of Congress will take heart. "If I were a senator," said Sterling, "I'd say I'm going to support the voters of my state. They had a pretty good idea here."

Meanwhile, Bush has to decide just how far the Department of Justice should go now that it can go all the way. Federal might or states' rights?

Living in Ukiah, Calif., former U.S. Rep. Dan Hamburg began growing marijuana to ease the pain of his mother, who died of breast cancer this spring. He noted that there are pot clubs across the country. He wonders if federal agents will storm every club in America? "Are they going to close down the one in Ukiah?" And: "I think there will be a lot of anger on the part of voters if the feds come in and try to supersede state and local law."

Washington should change the Controlled Substances Act. Until that day, Bush should not enforce the court decision, and respect his long-standing support of states' rights to handle issues their own way.

Comment JWR contributor Debra J. Saunders's column by clicking here.


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