4.  ANOTHER NADIR IN HOMICIDAL HAIR-SPLITTING
    by Vin Suprynowicz 
    Special to TLE

The United States Supreme Court ruled Monday there is no "medical
necessity exception" to the federal Controlled Substances Act -- a
lower appellate court "erred by considering relevant the evidence that
some people have 'serious medical conditions for whom the use of cannabis
is necessary in order to treat or alleviate these conditions or their
symptoms,' that these people 'will suffer serious harm if they are denied
cannabis,' and that 'there is no legal alternative to cannabis for the
effective treatment of their medical conditions.' "

Federal court prosecution of the Oakland Cannabis Buyers' Cooperative et
al. shall thus proceed, Justice Clarence Thomas wrote for the unanimous
court.

The California-based American Medical Marijuana Association
(http://americanmarijuana.org/ -- founded by former California Libertarian
gubernatorial candidate Steve Kubby) was quick to reassure concerned
parties that the ruling was of sharply limited scope:

"It is important to recognize that the Supreme Court decision did
not strike down or in anyway modify any state medical
marijuana laws," the AMMA wrote in a press release. "The Supreme
Court did not say that citizens don't have the right to
cultivate and possess medical marijuana within their own state borders. All
this decision said is that medical necessity is not a defense to federal
law.

"Bottom line," the AMMA continued, "medical marijuana still
stands in those states that have approved it. Even the medical marijuana
clubs will be largely unaffected, because they will simply switch from
distributing medical pot to helping patients grow their own. ..."

Maybe. But it turns out I wasn't the only person whose first response was
to recall the high court's previous nadir of homicidal hair-splitting, when
Justice Taney held in the infamous 1857 Dred Scott decision that black men
are property, not persons entitled to the protection of the law.

The court and its defenders will whine that they're not supposed to
"legislate from the bench"; that they were only asked whether
there is a "medical necessity defense" under the federal
Controlled Substances Act, whereupon they looked it up, determined that
there was none, and so ruled. The question of whether the Drug War on a
whole is Constitutional wasn't answered because it was never asked. The
court simply tells us what Congress intended.

Which is a black-hearted lie, of course. If Congress in a fit of madness
were to enact the Nazi race laws tomorrow , would the eight justices sit
there with straight faces, instructing us "We cannot locate within the
Act any 'religious freedom' exemption to the requirements that Jews sew
yellow stars on their clothing, that Jews are no longer allowed to own
businesses," etc.?

Of course not. When it's the First Amendment right of religious freedom
that's involved, everyone understands the court's first duty is to
determine whether the law in question is Constitutional on its face.

If it isn't, under the great precedent of Marbury vs. Madison (in which the
court answered several questions which no one had bothered to ask, by the
way) the law is held to be null and void; we're instructed to treat it as
though it never existed.

Besides which, attorneys for the Oakland Cannabis Buyers Cooperative et al.
did assert (as Justice Thomas acknowledges) that the
federal drug statute "exceeds Congress' Commerce Clause powers,
violates the substantive due process rights of patients, and offends the
fundamental liberties of the people under the Fifth, Ninth, and Tenth
Amendments."

So there it is, laddies, staring the eight lawyer-politicians (Ms. Breyer
retired to the powder room) square in the face.

Because, you see, the entire federal drug war -- all of 21 U.S.C. -- is
blatantly unconstitutional, and any high court obeying its oath to preserve
our government of limited power (as opposed to insisting we prostrate
ourselves before the majesty of the federal government's plenary authority,
holding us down by the elbows while the DEA greases up and services us from
behind) would have thrown it out in its entirety the first time they got a
look at it.

There are no fewer than three independently sufficient grounds on which
this could and should be held. The weakest of these is the 10th amendment,
which tells us that any power not specifically delegated to the United
States by the Constitution is reserved to the states or to the people.
Since nowhere in the Constitution is Congress delegated any specific power
to regulate drugs, the practice of medicine, or what responsible adults
choose to put in their own bodies, any state law (like California's
successful 1996 medical marijuana proposition) supersedes federal
authority.

This is the weakest argument simply because it would seem to authorize
state drug wars. I personally wouldn't feel all that
much better having my door kicked in and being hauled away in chains by
local drug warriors based in in Carson City or Sacramento or Tallahassee
than by the federal variety ... would you?

Now, truth be told, even state drug wars are further banned under the 14th
Amendment (the second sufficient grounds for tossing out the Drug War.)
Originally enacted to stop state authorities from passing "gun
control" laws which could disarm black Civil War veterans, this
amendment bans the several states from "abridging the privileges or
immunities of citizens of the United States."

Under the 14th, the high court could and should have thrown out
California's current marijuana distribution scheme not because it allows
some marijuana use, but because it places any
restrictions on marijuana use, at all.

Am I saying Americans have some kind of right to drugs?

Damned right, and here's where we come to the constitutional provision
which even a second-year law student could hardly ignore. The Ninth
Amendment advises the justices that "The enumeration in the
Constitution of certain rights shall not be construed to deny or disparage
others retained by the people."

In 1787 and thenceforward, at least through 1915, did our ancestors on
these shores "retain the right" to grow, produce, import, buy and
sell opium, cocaine, alcohol, and marijuana by the pound or by the ton, as
and whenever they pleased, without federal restriction save the occasional
modest excise?

Indeed they did. And the proof is that when Congress wanted to ban one of
these forms of commerce, a separate Constitutional Amendment -- the 18th,
since repealed -- had to be enacted to allow a federal ban on
"intoxicating liquors."

So: when was the parallel and necessary constitutional amendment ratified,
authorizing the War on Drugs?

Pardon me, I didn't hear that. Could you speak up, please? What year?

There is none, of course. The Ninth Amendment stands unchallenged; the
entirety of 21 U.S.C. stands invalid, and Justice Thomas acknowledges the
court just had someone advise them: "Hey, that emperor has no
clothes."

Nor is this merely some technical argument. Peter McWilliams, author of
"Ain't Nobody's Business If You Do," died vomiting in his bathtub
last year because a California judge with a withered soul ruled he couldn't
use marijuana to keep down his chemotherapy drugs while out on bail on
charges of possessing medical marijuana.

They killed him, as surely as they're willing to kill Steve Kubby, whose
survival of advanced adrenal cancer can only be explained by the
effectiveness of his marijuana therapy. (A citizen jury quite appropriately
acquitted Kubby and his wife of marijuana charges earlier this year under
California's medical marijuana law, but he still faces jail on a minor
related charge.)

"Today, the same Supreme Court that once ruled black slaves were the
legal property of their white owners, has again earned a place in infamy by
ruling that no medical marijuana necessity defense is possible, simply
because Congress has already decided that marijuana has no medical
value," Steve Kubby wrote Monday.

"A man sees another man drowning and steals a boat to rescue
him," Kubby wrote. "What should happen to the man who stole the
boat? ... For centuries, common law has upheld the right to break a law, in
order to protect human life. ...

"Does saving a patient's life justify a cooperative of patients in
breaking federal law? According to the Supreme Court, it does not."
- - -
Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. Subscribe to his monthly newsletter by sending $72 to
Privacy Alert, 1475 Terminal Way, Suite E for Easy, Reno, NV 89502. His
book, "Send in the Waco Killers: Essays on the Freedom Movement,
1993-1998," is available at 1-800-244-2224, or via web site
www.thespiritof76.com/wacokillers.html

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