You cannot possibly have a broader basis for any government than that which includes all the people with all their rights in their hands, and with an equal power to maintain their rights.
William Lloyd Garrison
It all makes perfect sense until you think about it. That’s how a lot of things are in the Bush world. The most recent example came from Mark Quinlivan, a lawyer in the Ashcroft Justice Department. He addressed the annual meeting of the American Bar Association held in August in San Francisco. Individuals invited to speak are supposed to say something interesting. U.S. Supreme Court Justice Anthony Kennedy demonstrated how that is done.
Addressing the group on August 9, 2003, he told the lawyers that too many people are imprisoned in the United States. He pointed out that one American in 143 is incarcerated compared with one in 1000 in many European countries. He called for the repeal of mandatory-minimum sentences for federal crimes saying: “Our resources are being misspent. Our punishments are too severe. Our sentences are too long.” He said mandatory minimum sentences can produce “harsh and unjust” results. His comments were thoughtful and thought provoking. They provided a nice contrast to Mr. Quinlivan who propounded the preposterous to the assembled lawyers. Mr. Quinlivan told them that people in California who voted to legalize marijuana for medical use were exactly like the people in the south in the middle of the 20th century who espoused segregation. Until Mr. Quinlivan spoke, it is safe to say, that thought had occurred to no one outside the Ashcroft Justice Department. It is that kind of creative if somewhat antediluvian-anti- Republican thinking that has distinguished that department under Attorney General Ashcroft. The concept Mr. Quinlivan propounded was antediluvian because of its content and anti-Republican because Republicans claim to dislike it when the federal government tells states and individuals how to behave. Republicans are willing to set aside that dislike when marijuana is at issue since it is a fundamental belief of the Bush administration that marijuana is bad.
In 1996, California passed proposition 215, a proposition legalizing marijuana for medical use. Thinking that a good idea, a number of other states followed suit. The administration realized it had to do something and following in the less than laudable footsteps of the Clinton administration that was also upset by the introduction of those laws (although it never equated them with segregation) , began efforts to undo the wills of the people in the states that passed those laws.
In Oregon, where voters approved a referendum permitting physicians to prescribe marijuana for their patients, the Bush administration went to court and was told by the 9th Circuit Court of Appeals that doctors cannot be punished for prescribing marijuana. Distressed, the administration appeals and is asking the United States Supreme Court to permit it to strip a doctor of the license to prescribe drugs if the doctor prescribes marijuana. The fact that the voters in Oregon, California and several other states think medical marijuana is OK does not concern the administration. What the few in the administration believe is right is right irrespective of what the many who live in the land may think.
As Mr. Quinlivan explained to the audience: “You cannot cherry-pick your federalism”. He went on to say that if a California initiative takes precedence over a federal ban on marijuana then anything goes. The marijuana supporters are, Mr. Quinlivan said, similar to the recently deceased George Maddox, the former governor of Georgia who with his axe handle demonstrated his determination to keep African Americans out of his restaurant, Orville Faubus and George Wallace who didn’t want them in their schools. Mr. Quinlivan said those men were asserting their independence from the national government on issues that were of national concern that could not be tolerated by the federal government.
It was an ingenious argument, more so since until he spoke few would have thought that depriving an entire group of people of the right to attend the schools of their choice or to enter public facilities was the same as lighting a marijuana cigarette that, when used for medical purposes, was intended to relieve the suffering of the terminally ill. With Mr. Quinlivan’s enlightenment, the parallel was obvious to all but a few.
Gerald Uelmen, a Santa Clara University law professor, is one of the few. He is representing some of those who are supporting the medical marijuana laws. He observed that civil rights laws that were invoked in the 1950s to outlaw segregation were based on the constitutional guarantee of equal protection and on interstate commerce provisions. As he observed, the use of medical marijuana in California does not implicate interstate commerce nor does it have anything to do with equal protection.
Taylor Carey, a special assistant state attorney general who wrote the brief supporting California’s law is also among the few. He said: “When the government acted to protect the civil liberties of the children of Alabama, they acted with the highest degree of moral force. When they act to prevent critically ill people from obtaining medication they are not acting with the same degree of moral propriety.”
Someone might want to tell Mr. Quinlivan that he is fighting a losing battle. Prisons are overcrowded because the war on drugs is never ending and victory is not in sight. The only result of putting people in prison for drug crimes is overcrowded prisons. Prisons did not produce victory in the drug war. Neither will depriving sick people of marijuana.
CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. He can be reached at: firstname.lastname@example.org