Medical Marijuana and the Ninth and Tenth Amendments

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On Tuesday, Drug Enforcement Administration agents swooped down upon the premier medical marijuana club in California’s Bay Area, targeting its dispensary and seven ancillary locations in San Francisco and Oakland. By destroying and confiscating property, seizing medical records, pummeling ATM machines with sledge hammers and jailing fifteen people, the federal agency hopes to teach a lesson, not just to medicinal pot users but to all Americans — this area, as all areas in the country, belongs to the federal government.

The press says the DEA seized 13,000 plants, but don’t let that number mislead you. Many of the plants these locations carry are barely sprouted and are intended for sale to patients to grow on their own. And besides, even if they had seized ten times as many, the issue at stake here is clear: the power of Washington, DC, to push around individuals and localities with its sheer tax-funded might.

In 1996, California voters approved a sweeping medical marijuana initiative, Proposition 215, which established a list of accepted medical conditions to be treated with marijuana. Even after the State Attorney General had used his official capacity, on the taxpayer’s dime, to lobby against it, claiming it would lead to the decriminalization of the plant for recreational as well as medical purposes, the voters sided with the measure.

Whatever we might think about such state and local regulations, the marijuana clubs have been at pains to follow them. This makes little difference to the feds. The Drug War knows no bounds. National laws, even ones that Congress has no authority under Article I, Section 8 to pass — even ones that are outright barred by the Tenth Amendment’s reservation of unenumerated powers to the states — trump state and local law, to say nothing of individual liberty, in this day and age.

Consider another atrocity. In 2002, the feds busted author Ed Rosenthal for growing marijuana, which he had been growing on behalf of the city of Oakland. Then they disallowed the admission of evidence that what he had been doing was for medical purposes and under the auspices of the city. Upon convicting him under these false pretenses and then discovering the truth, a majority of the jurors renounced their own verdict at a press conference. He only got a day-long sentence from a sympathetic judge, but outrageously the federal government appealed it.

The Supreme Court had a chance to review the Constitutionality of such pharmacological national socialism back in June, 2005, and totally blew it. Even though it should be obvious that this is not properly a federal matter, the five "liberals" on the court decided that ruling in favor of states rights and federalism might jeopardize all their beloved federal welfare state programs erected during the New Deal and Great Society. (They were right about this.) So they decided to side with leviathan, jackboots and all, rather than decentralism and the rights of the sick to medicate themselves. "Strict constructionist" Antonin Scalia, a rabid drugwarrior, also upheld the national police state.

The federal crusade against marijuana has not been limited to California. The White House Drug Czar has illegally used tax dollars to campaign against medical marijuana initiatives in Montana and Vermont in 2004 and in Rhode Island early this year. Just recently, the feds descended upon Nevada to combat an initiative that would altogether decriminalize marijuana for adults. Not only do they use our money to enforce laws against our own local sentiments; they use it to try to influence the outcome of local elections.

The federal government has increasingly come to regard anything having to do with drugs to be in its sole jurisdiction. It has poisoned marijuana abroad, financed anti-drug regimes, even brutal and murderous ones, and strong-armed other nations, most recently Mexico, to prevent them from liberalizing drug laws.

As for medical marijuana itself, the plant has been used medicinally in numerous cultures for thousands of years. According to laboratory studies with rodents, it is one of the safest intoxicants known to man, as it takes an estimated 40,000 doses to kill a human — compared to five or ten doses of alcohol. It acts on cannabinoid receptors in the brain, almost none of which are in the brain stem, which helps to explain its negligible lethality. It treats nausea, pain, glaucoma, and some of the nasty side effects of cancer and AIDS medications. In the case of some sick people, it is the only known drug that will really help.

There are some objections. One is that it must be smoked, and that can’t be good for you. Another is that federally approved Marinol, a synthesized THC pill, is available for those who really need it. Well, Marinol does not have all the cannabinoids of marijuana, only the THC. According to some patients, several of the medicinal properties of the plant, such as its anti-nausea effects, are not nearly so prevalent in Marinol. In other words, there are sick patients who are getting very stoned off federally approved Marinol, which is not the effect they seek, all the while it is failing to address their symptoms.

A reason a lot of patients smoke marijuana as opposed to swallowing it is to control dosage. It is harder to predict with digestion how strong the effects will be, as it depends on such factors as what food one has eaten. Studies reveal that even regular marijuana smokers are much less likely to get lung cancer than cigarette smokers and are actually no more likely to get it than the non-smoking population. New vaporization technology has also enabled patients to inhale marijuana vapor without the undesired contents of smoke.

However, none of this should have to be argued. The fact is people have a human and Constitutional right to control their bodies: self-medication is a Ninth Amendment right "retained by the people." And since there is no enumerated power of the federal government to regulate drugs and medicine, the federal government certainly has no right overthrowing local medical marijuana laws and imposing its centralized authoritarianism in their place. With the latest disgrace of the Bay Area pot club raids, individual rights and federalism have once again been demolished by the DEA. If ever we are to restore anything resembling a working Bill of Rights, of which the Ninth and Tenth Amendments are perhaps the crowning jewels, the DEA should be one of the first agencies to go.

Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his webpage for more articles and personal information.

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