The Great Change: Turning Cathy into a Lawyer

BU law professor Randy Barnett will be arguing before the Supreme Court on Monday in Ashcroft v. Raich over the legality of medical marijuana. (See this CNN/AP article for an overview*, and for a very readable explanation about the issues in this case, see this blog entry at Salon.) I haven't had a class with Professor Barnett, but I met him last year to discuss a curriculum issue. I found him approachable and passionate about what he believes in. Although from what I gather he leans more libertarian than I do, when it comes to civil liberties he and I might likely agree in many instances.

But like many cases that topically seem like civil liberties cases, although this one focuses on the ability for a patient to use medical marijuana, the actual legal argument has little to do with that liberty. The argument he will make focuses on whether the Federal government has the ability to regulate (in this case to ban) activity that takes place entirely within a state, with no implication of interstate commerce. His argument has support even from states disinclined to permit medical marijuana usage because the Federal government's argument, should it prevail, could negatively affect other states' rights issues. The Salon blog article is worth reading for more detail. Comments by Professor Barnett and another professor can also be found at the Volokh Conspiracy (a law professor blog), and a Harvard Law student posted a summary of the practice argument he made there recently.

I'm personally in favor of medical marijuana, in no small part because US drug policy as a whole is so completely dysfunctional. Its dysfunctionality is manifest in so many ways: disproportionately high sentences for non-violent but possessory offenses; a puritan self-righteousness that demands to regulate private behavior; the foreign policy (and with it, the domestic security) negatively affected by drug laws; the arbitrary choices between what is forbidden and what is not; the suppression of critical thinking in any anti-drug education... And for medical marijuana in particular the decision to forbid it seems incredibly unmerciful, ignoring substantial evidence that its usage can be indispensable to the health and well-being for some seriously ill citizens, often in a way that no "legal" substitute can. That local populations, via the states, can recognize this need and choose to permit the drug's use in this context is a triumph of self-government, and not one that should be overturned by a more distant federal one.

Of course, I say all the above with absolutely no desire to take drugs myself, and a tacit disrespect for those who (for no medical reason) would choose to. But I see no reason to use the weight of the government to perpetuate my personal judgment on the point, at least not in the indiscriminate, inequitable, unjust, and counter-productive way it currently does.

I also don't generally have a problem with federal power. I think it can be handy. I think it can be handy in ways that many states-righters would disagree about. But I don't think refusing the will of Californians to permit its people from seeking relief this way is in any way "handy" at all.

* In the small world department, I've been in Dr. Lucido's practice (the doctor mentioned in the linked CNN article who had prescribed the marijuana). In my experience he's an extremely enlightened practitioner, amenable to alternative homeopathic remedies when the standard treatments are ineffective. This is not to say he eschews conventional treatments. On the contrary, he pursues them, but he seems to recognize that if they aren't resulting in wellness there's no point in sticking with them, certainly not just because they are the conventional treatments. In my case I had a recurrent case of strept throat that I could not shake. Course after course of antibiotics resulted in nothing but my homeostasis feeling like it was dissolving. I asked for something else instead, since I clearly wasn't getting better under the usual regimen, which was just making me feel worse. So he took me off the conventional drugs and recommended Echinacea and large doses of vitamin C. It worked. I'm grateful. Not only that it worked but that he was so responsive to his patient's needs. A truly effective physician indeed.

Edit 11/29: Professor Barnett gave his argument today. By all accounts it sounded like a tough row to hoe, but the bits of transcripts (as opposed to the newspaper summaries) suggest he held his own. For what it's worth, yes 100,000 people is a lot of people who may need medical marijuana (Bush administration estimates) but in a population of 34 million, it's not all that many at all.

Edit 11/30: I just read this longer transcript. A comment by Scalia stood out:

Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.

The comment may have been facetious, but it reminded me of a bias I've noticed having lived on both coasts, that people living east of the Rockies tend to think of Californians as nothing but a bunch of hippy stoners living in communes (or movie stars). Of course the stereotype hardly holds true for the majority of the population. But Scalia's comment made me wonder if that subtle bias might reveal itself in the outcome of the case. Would the Justices be inclined to rule any differently if the state in question was Nebraska? How about New Jersey? In other words, might the perception of the state affect how the legitimacy of its local law is perceived? Or what about, if the state in question, standing alone, is the 5th largest economy in the world, might that change the analysis too?