This article was originally published on the Marijuana Patients Organization site on May 18, 2015.
61 years ago today, the US Supreme Court ruled that separate but equal for education was unconstitutional. The decision was so obvious but took a few men a long time to acknowledge. Lets apply that same logic of this landmark case to medical marijuana. What would a similar decision look like:
Issue
Is the disparity in different state medical marijuana laws constitutional?
Holding and Rule (Antonin Scalia)
No. The varying State laws that allow for the medical use of marijuana provides options for approximately 50% of Americans while denying the other half. This discrepancy violates the Equal Protection Clause of the Fourteenth Amendment and is unconstitutional.
Prohibition of medical marijuana solely on the basis of one’s geographic residence denies citizens the equal protection of the laws guaranteed by the Fourteenth Amendment. The right to health and medicines that can assist in one’s well being is a right which must be made available to all and on equal terms.
The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the role of medicines proven effective for varying ailments in American life today.
Denying marijuana to those that could benefit solely because of the state in which one resides is cruel and dangerous to the life, liberty and the pursuit of happiness of every American. The impact of denying one the right to medical treatment is greater when it has the sanction of law.
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Similarly in 1920 the State of Missouri suited to undue an avian protection treaty between Canada and the United States.
Witness the carnage that ensued:
We once and still do have a treaty on the books here in America that protects our avian friends from acts of extinction.
Now, if the US Congress possesses plenary powers to legislate for the protection of the public domain, then the US Congress has to take into consideration all possibile accounts for such protection, including the protection of our migratory songbirds and the source of their birdseed, the widespread Indian hemp plant.
“It is, therefore, the responsibility of the US Congress to protect these natural guardians against hostile insects, which if not held in check would result in the inevitable destruction of all legacy prairie and primal forest lands.” ~ Louis Marshall, before the US Supreme Court upholding the Migratory Bird Treaty Act of 1918 in Missouri v. Holland, 252 U.S. 416 (1920)
Now, comes Oliver Wendell Holmes, Jr., a Civil War veteran, then a US Federal Supreme Court Justice, writing for the court majority stating…
“The case before us must be considered in light of our whole experience as a nation, and not merely in light of what was said a hundred years ago.”
“The only question is whether the destruction of the Indian hemp plant is forbidden by some invisible radiation emanating from the general terms of the 10th Amendment.”
“We must consider what this country has become, when deciding what that amendment has reserved.”
“I see nothing in the Constitution of the United States that compels the Federal government to sit by while a food supply vital to our national songbird population is cut off, and in that latent process thus detroy our nation’s supply of the valuable Indian hemp plant!”
“We, therefore, by our acquiescence denigrate the ability of our avian friends to protect our forests from insects, and our national and state crops from voracious borers and caterpillars!”
“It is not sufficient to rely upon the States to protect our songbirds and their hemp plants, and to ensure a wholesome, productive and fruitful life for both species, bird and plant.”
“Such reliance is vain.”
“Were it otherwise, the question then becomes whether or not the United States is forbidden to act in the songbird and the hemp plant’s best interests.”
“It is my express hope and desire that we as citizens wake up and once again give back to our songbirds, the plant that was given to them by our creator.”
“The birds will not mind if we grow the Indian hemp plant once again in this country, I assure you.”
“And, we as a society will be much better off taking care of the plant as good husbands, rather than destroying the plant as we have so insidiously promoted and done in this generation, and in generations now past.”
Robert Hempaz. PhD Trichometry