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Jewish World Review August 7, 2002 / 29 Menachem-Av , 5762

Jonathan Turley

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San Francisco embracing states-rights | Even in a city where cross-dressing is a protected right--if not a cherished tradition--San Francisco leaders have turned heads recently by appearing publicly in a new type of trans-political apparel. Members of the ultraliberal San Francisco City Council have suddenly taken on states' rights--normally a conservative stance--as their cause celebre.

Their opponent is none other than ultraconservative Atty. Gen. John Ashcroft--normally a states' rights advocate--who is asserting the supremacy of the federal government.

At issue is the desire of California citizens to allow seriously ill patients to use medical marijuana to relieve their pain and discomfort. Advocates in San Francisco have proposed a program in which the city government itself would grow and distribute medical marijuana; a November ballot measure is planned. If San Francisco voters approve the measure, a major confrontation over states' rights will be triggered and may prove to be one of the most significant federalism cases in decades. Federalism protects the states from the encroachment of the federal government, leaving the primary decisions of government to the individual states. It is a principle based on the idea that power is safest when held closest to the people. Under our system, each state is allowed to try what U.S. Supreme Court Justice Louis Brandeis once described as "novel social and economic experiments" in solving contemporary problems.

Federalism is often wrongly seen as a Republican or conservative position. Liberals have long considered the federal government to be more enlightened than the states. For example, during desegregation, federal courts and Congress proved far more protective and active in the area of equal rights. As a result, liberals have often rallied in opposition to federalism to the same degree that conservatives have rallied around it.

Both conservatives and liberals now face a quandary. While liberals were once happy to see the federal government shape state policies in its own image, they are less enthusiastic now that the image is that of Ashcroft. In California, advocates found themselves arguing for the use of medical marijuana to a man who does not smoke, drink or dance and who probably viewed the 1936 movie "Reefer Madness" as a medical documentary. Liberals have suddenly discovered federalism and the right of state self-determination.

While conservatives have long defended states' rights, they now face states that want to experiment with gay marriages, medical marijuana and assisted suicide. Accordingly, conservatives have suddenly discovered the need for uniform federal laws in traditional state areas. The controversy over medical marijuana has less to do with pot than it does principle.

Regardless of the merits of medical marijuana, Californians are rightfully aggrieved by the federal government telling them it alone can approve certain drugs for the use of the terminally ill. While growing pot in San Francisco may seem less inspiring than dumping tea in Boston, it is a defiant act that speaks of the right of citizens to self-determination.

If San Francisco draws this line in the constitutional sand, it will force conservatives on the Supreme Court to make a choice between their principles and their personal inclinations.

In 2001, the court considered a case involving a federal crackdown on a cooperative in Oakland that distributed medical marijuana, consistent with state but not federal law. In a decision written by Justice Clarence Thomas, the Supreme Court rejected the cooperative's claim of medical necessity. However, in a virtual invitation for challenge, the court expressly reserved the question of whether the federal government was violating federalism guarantees in its enforcement of drug laws over state medical marijuana measures.

The San Francisco program may finally answer that question. Frankly, I am more concerned with the Constitution than the cannabis in this controversy. Whatever societal risks are presented by terminally ill patients getting stoned, they pale in comparison with the political risks of yielding to federal authority in this area. Of course, it may be too much to hope that there is more than mere opportunism in the recent embrace of federalism. Yet perhaps this controversy will show that liberals have much to gain from federalism, particularly in states like California with a history of bold social programs and experimentation.

In the end, California may not be right about medical marijuana, but it has a right to be wrong.

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JWR contributor Jonathan Turley is a constitutional law professor at George Washington University. Comment by clicking here.

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© 2002, Jonathan Turley