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Ninth Circuit to Angel Raich: Shut Up and Die

Whether the case of Angel Raich ever gathers enough momentum to work a change in constitutional culture is an open question. Even if it does not, there is something chilling about watching Ms. Raich die as the federal government asserts that she cannot use the palliative measures of her doctor's choice to ease her pain.

Ms. Raich is a young woman. At 41, she suffers from an inoperable brain tumor. Her doctors have prescribed marijuana both to ease pain and to stimulate appetite. In 2005, the United States Supreme Court held that the federal government can criminalize the medicinal use of marijuana. The Ninth Cricuit this week tidied up odds and ends associated with the case. The Circuit essentially told Ms. Raich simply to shut up and die.

Federalism traditionally left the police power to the states. In other words, the health, education and welfare of a state's citizens were the affair of the states. The federal government had more limited, and enumerated, powers. The balance has shifted in recent years, making states at time appear to be little more than administrative units of the federal government.

Eleven states have laws on the books permitting the medicinal use of marijuana. New Mexico is poised to pass legislation permitting it. In each state, federal prosecutors will still have an option to prosecute those who use marijuana pursuant to state law. This clash of laws makes a mockery of federalism.

The federal government's war on drugs is a costly failure, serving only to expand the reach of federal power at considerable expense. As near as I can tell from my perspective in the trenches of criminal law, the demand for drugs is constant. Round up one group of drug dealers and a new one replaces them before the new defendants have even been arraigned. Addicition drives drug sales.

In the Raich case, addiction is not even the issue. A woman is wasting away. Her doctors want to help her. What federal interest justifies the prosecution of those seeking to help Ms. Raich? Will she be jailed should she use marijuana? A fine face we show the world: Sit here, Ms. Raich. Sit in your new cell. Die, now. Painfully. We'll pay for the cell.

The Ninth Circuit was almost apologetic to Ms. Raich. It recognized that there is growing support for the use of medical marijuana, but held there is not a yet a consensus in this country that the right to use it is fundamental. A consensus among whom, federal judges? The states are speaking.

So what would the founders do? Suppose the first Congress passed a law outlawing the use of leeches to let blood. Wouldn't that be a state power? Marijuana was not used in the United States during the founding era, and the war on drugs had not yet been conceived. Originalists should be a little tongue-tied on this one.

What sheep we have become. Colonists revolted over a trifling tax on tea and stamps on legal papers. Our government tells us to die in pain and we roll over to oblige it. Tom Paine, where are you?