The federal government cannot ban criminals from bringing guns to schools, but it can arrest a person for growing marijuana at home to ease nausea from chemotherapy.  Such is the state of Supreme Court jurisprudence.

The intellectual case for the “War on Drugs” faded long ago.  Criminalization of what is primarily a moral and health problem has done little to stop substance abuse.  But draconian enforcement efforts have done much to generate violent street crime, disrupt and destroy neighborhoods, imprison millions of nonviolent offenders, and spread conflict to nations from Afghanistan to Colombia.  Moreover, the War on Drugs has penalized the desperately ill and dying, who have turned to pot as a last resort.

A decade ago, California legalized medical marijuana.  Ten other states followed, allowing patients—suffering from such diseases as AIDS, cancer, glaucoma, and multiple sclerosis—to smoke grass for relief from nausea and pain.  Although state troopers and local police no longer toss these users in jail, Uncle Sam continues to arrest even those who are dying.

Never mind that Congress is dominated by Republicans who claim to believe in federalism, state autonomy, and limited government.  Washington busily overrides states that seek to protect the sick.  (Not every conservative is so hypocritical.  To his credit, Republican Rep. Dana Rohrabacher (CA) has joined Democratic Rep. Maurice Hinchley (NY) to push legislation barring use of federal dollars to prosecute medical-marijuana users.)

Fifteen years ago, the U.S. Supreme Court began to revive the original constitutional understanding that the federal government did not have unlimited jurisdiction.  The Court controversially overturned the Gun Free School Zones Act of 1990 (Lopez) and part of the 1994 Violence Against Women Act (Morrison).  These decisions suggested that there were at least some limits on congressional power.  As Justice Sandra Day O’Connor noted in her dissent in Gonzales v. Raich, “The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.”

States have not always done a good job, but competition among them gives dissatisfied citizens a choice and encourages poor governments to improve.  In this way, states are laboratories of social experimentation.

In recent years, a dozen of them chose to believe citizens such as Angel McClary Raich, one of the plaintiffs, who explained: “We’re just sick.  We’re not criminals.”

Raich suffers from chronic pain, multiple tumors, and wasting syndrome; she is obviously no recreational pot user.  “We are not being disobedient,” she notes.  “We are just using this medicine because it saves our lives.”  Raich adds: “With cannabis, I can play with my kids, walk without a wheelchair, sometimes even get a few hours sleep at night.”  Her doctor says pot was “the only drug of almost three dozen we have tried that works.”

Although Angel Raich has not gone to jail, the government has targeted other patients who use and grow medicinal pot.  The Drug Enforcement Agency raided the garden of co-plaintiff and fellow Californian Diane Monson, who suffers from degenerative spine disease.  Federal authorities also raided the home of Dana May of Aurora, Colorado, who tends marijuana plants for himself and two other people who are ill.  Bryan Epis of Chico, California, was sentenced to ten years in prison after being arrested for cultivating medicinal pot.

Mr. Epis was released after the Ninth Circuit Court of Appeals barred federal medical-marijuana prosecutions, based on Lopez and Morrison.  Now, he might have to serve the remaining eight years of his sentence.

Advocates of Washington’s drug war, from such federal officials as “drug czar” John Walters to such coercive “prevention” groups as the Drug Free America Foundation, cry crocodile tears for the sick, arguing that marijuana is not good medicine.  Maybe, but the anecdotal evidence is impressive, and polls found that overwhelming majorities of American and British oncologists would recommend that their patients use pot if it were legal.

The American Medical Association Council on Scientific Affairs reported that “anecdotal, survey, and clinical data” demonstrate marijuana’s medical efficacy.  The Institute of Medicine concluded that “marijuana has potential as medicine.”

Dozens of health organizations, including the American Cancer Society, California Nurses Association, Kaiser Permanente, and Whitman-Walker Clinic back access to and/or research on medicinal pot.  Even the federal government’s own National Institutes of Health acknowledges that “Marijuana looks promising enough to recommend that there be new controlled studies done.”

The issue is not pot’s value as a medicine but Uncle Sam’s role.  The debate should be carried out in state governments across America, not in Washington.  Grant that the federal government correctly jails people who prefer to get high on marijuana or cocaine rather than derive their buzz from alcohol or cigarettes.  Grant that Washington can criminalize local sales because of their connection to interstate drug shipments.  Nonetheless, if residents of Oregon, Colorado, Arizona, or any other state believe that someone dying of cancer should be left alone if he uses marijuana to control chemo-induced nausea, Uncle Sam should butt out.  As Justice O’Connor observed,

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernible, let alone substantial, impact on the national illicit drug market.

Is there any limit on the reach of Uncle Sam’s mailed fist?  Indeed, if the opinion in Gonzales v. Raich is correct, one has to wonder why the nation’s founders bothered to write a constitution.  They simply could have explained legislative power in one sentence: “Congress can do anything that it pleases.”

Candidate George W. Bush said that the legalization of medical marijuana should be left up to the states.  But President George W. Bush’s administration urged the Supreme Court to endorse federal supremacy in a sick person’s garden.  Limited government is dead.