A case for mercy.

MANY patients suffering from terrible diseases find that smoking marijuana provides them relief from their symptoms or from the side-effects of their treatment. The chief response to their plea for compassion, on the part of the drug warriors, has been to insist that the Food and Drug Administration has not determined that marijuana is a safe medicine, and that other palliatives are available. It is a despicable response coming from people who have never allowed researchers the freedom to conduct the detailed clinical trials that the FDA would need to verify safety. A cancer patient seeking a break from overwhelming nausea will hardly be consoled by the knowledge that the government is protecting him from the remote risks that pain relief might bring. Whatever the drug czar thinks, some of these patients say that marijuana substitutes do not work as well as marijuana in relieving their pain. Swallowing Marinol takes longer to work, is more expensive, and has more adverse side effects than smoking marijuana. Should we be happy that with marinol there is less risk that cancer patients will experience some illicit pleasure?

Several states have rejected this perverse logic in referenda. The Supreme Court has just ruled, however, that the federal government may continue to prohibit the medicinal use of marijuana. Whether marijuana-using patients in California will face the threat of jail time thus depends not on their state's laws but on the discretion of federal prosecutors.

Justice Scalia makes the best argument for the constitutionality of a federal ban. The federal government, he writes, has the authority under the commerce clause to prohibit interstate commerce in marijuana. It therefore has the authority under the necessary-and-proper clause to take whatever steps are required to make that prohibition effective. The personal use of marijuana may not be commerce. But if Congress has concluded that the personal use must be banned for a ban on interstate commerce to be effective, Scalia reasons, the Constitution allows it to act on that conclusion.

Even as a legal argument, Scalia's opinion is not entirely persuasive. If he is right, then the Prohibitionists were wrong to think they needed to enact the Eighteenth Amendment. They could have passed a statute banning alcohol possession and consumption, on the theory that it was necessary to ban the interstate commerce in alcohol.

But even if Scalia is ultimately correct to think that the courts should not second-guess Congress here, his legal argument sheds light on the folly of the federal policy. Allowing sick people to use marijuana probably would marginally reduce the effectiveness of federal anti-drug laws. But it's not as though those laws would be enforced perfectly in the absence of exemptions for medical marijuana. Other factors undermine the law's effectiveness far more: human nature; the economics of prohibition; the exemption from the law we give, in practice, to most casual drug users. Can it really be maintained that the drug laws are working so well for the nation that we cannot risk reducing their efficacy by giving cancer patients a break? And if not, shouldn't Congress amend the law?