BUSH AND CO LIT UP OVER MEDICAL MARIJUANA

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 Aug. 9, Kennedy 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 1,000 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.

Kennedy's 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 John 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. Other states followed suit. The administration
realized it had to do something. Following in the less-than-laudable
footsteps of the Clinton administration, which was also upset by the
introduction of those laws (although it never equated them with
segregation), it 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 administration was told by a
federal court that doctors cannot be punished for prescribing marijuana.
Dissatisfied with that result, the administration 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 Lester Maddox, the former governor of Georgia who with his ax
handle demonstrated his determination to keep African Americans out of his
restaurant, and former Southern governors Orval 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 and that could not be tolerated by the federal
government.

Until Mr. Quinlivan 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 invoked in the1950s 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 have not produced victory
in the drug war. Neither will depriving sick people of marijuana.