Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress.

The Looming Battle over the Supreme Court

The recent decision in Raich v. Gonzalez is a timely reminder of the profound impact of decisions by the Supreme Court. Many viewed the court’s decision in light of their position on medical cannabis. Advocates for medical cannabis were critical of the majority decision applying the interstate commerce clause of the Constitution to personal, non-commercial cultivation of marijuana for medical use, and understandably supportive of the dissenting opinion arguing that the federal government should defer to the state medical marijuana laws to decide such questions.

Only three justices supported the state’s rights argument in favor of medical cannabis: Sandra Day O’Connor, Clarence Thomas, and Chief Justice William Rehnquist. Justice O’Connor has resigned from the Court, and rumors that Chief Justice Rehnquist is also resigning are in wide circulation. Liberal and conservative interest groups are mobilizing for an intense political war over the confirmation of O’Connor’s successor even while the President considers various candidates to nominate and submit to the Senate for confirmation.

It is likely that replacements for both O’Connor and Rehnquist will have similar views on state’s rights issues, suggesting that this looming battle is of little interest to medical cannabis advocates. Indeed many conservatives seek to establish a majority on the Supreme Court in favor of state’s rights and other narrow interpretations of federal Constitutional authority. If successful their efforts could very well transform the minority in Raich v. Gonzalez into the Court majority, adopting legal doctrines that would allow state’s to determine their own policies about medical cannabis production, distribution, and use.

For advocates of marijuana legalization, supporting the conservative movement to transform the Supreme Court would be a foolish proposition. It would be naïve for marijuana legalization advocates to believe that the conservative movement will cooperate in advancing their cause. Marijuana legalization is, for many reasons, a liberal cause based on individual rights in a progressive political culture. Modern conservative political activity is dedicated to reversing many of the progressive social and political trends of the 20th century that define our liberal society. Legalizing marijuana is just not on their agenda.

Ralph Neas, President of People for the American Way, has been warning for years about the New Right’s agenda to alter the legal doctrines of the Supreme Court. Repeating comments he’s made in several public forums, Neas told NPR’s Fresh Air in early 2005 “They disagree with how the commerce clause has been interpreted, the spending clause has been interpreted, privacy, the 14th amendment. So in one fell swoop in the next three years we could lose not just the last seventy years of judicial precedents affecting the environment and civil rights and reproductive rights and privacy but also the constitutional basis for future progressive government.”

One of the most influential organization’s in the conservative quest to remake the Supreme Court is The Federalist Society. Composed of conservative lawyers, law students, professors, and other supporters the Federalist Society is dedicated to reversing many of the legal doctrines adopted by the Court since the Presidency of Franklin Roosevelt. According to the Institute for Democracy Studies “Federalist Society representatives and publications frequently criticize what they term "judicial activism." These criticisms seek to impugn, unfairly, judicial actions that do not accord with their philosophy. Decisions that reflect evolving constitutional concepts of social justice are denounced as lacking the necessary grounding in the constitutional authority of the court. Conversely, many radical legal interpretations conforming to so-called traditional values or radical deregulatory positions find acceptance as good law.”

The constitutional basis for progressive government referred to by Ralph Neas derives from the authority of the national government to promote both national standards and individual liberties. The commerce clause has been used, for example, to justify environmental regulations that enforce national standards on otherwise local issues such as land use. The spending clause has been used to compel states to adopt national standards or risk loss of federal funds. The right to privacy preserves an individual’s right to make decisions about their welfare in such areas as health care, reproduction, and private conduct. The 14th Amendment has been used to compel states to recognize the rights granted under the national constitution and to justify affirmative action policies. These uses of federal power have been upheld by the Supreme Court over the last 70 years. Conservatives have worked for generations to get the Supreme Court to reverse these doctrines and restore the supremacy of the power of the states over the rights of the individual.

The state’s rights model for medical cannabis reform is modeled in part on the conservative vision to suppress abortion rights in the United States. The conservative argument is that if Roe v. Wade is overturned abortion will not be illegal, but instead will be left to the states to decide on as part of the federalist tradition of letting local areas regulate medical practices. While some states may ban abortions or make them difficult to obtain, other states will allow them as legal medical procedures. The key difference, though, is that the issue will be defined in terms of a state’s right to ban abortions rather than as an individual’s right to decide whether or not to have child. According to this model, an individual has no more right to use medical cannabis than they do to have an abortion. Under this model the right of the state to prohibit medical cannabis use overrides any individual right to seek and receive appropriate medical care.

Access to medical cannabis is an individual right that belongs to all Americans. The constitutional basis for progressive government described by Neas and opposed by conservatives also provides the basis for establishing and protecting the right of all Americans to have access to medical cannabis. The looming battle over the Supreme Court will affect the future of all Americans, and it will certainly affect the future of medical cannabis in the United States. Recent support for state-level medical cannabis laws by conservatives on the Court might encourage many cannabis-reform supporters to embrace the state’s right philosophy of the Federalist Society and the far right. However in the upcoming battle over the Supreme Court such support will mark an abandonment of progressive gains established over the last 70 years while weakening the chances of obtaining safe access to medical cannabis for all Americans.