Faculty Notes

‘The End of the Red Queen’s Race: Medical Marijuana in the New Century’ by Ruth C. Stern and Prof. J. Herbie DiFonzo

“The End of the Red Queen’s Race: Medical Marijuana in the New Century” by Ruth C. Stern and Professor J. Herbie DiFonzo is forthcoming in the Quinnipiac Law Review (2009). The article was also referred to by Mary L. Dudziak on the Legal History Blog.

This article explores the medicinal cannabis movement in the United States, and the social, legal and political forces that so strenuously oppose it. Despite its proven medical value, marijuana remains misclassified under federal law, misrepresented and misunderstood by most of our drug policy makers. Seizing their role as innovators in our federalist system, California and eleven other states have declared their support for the many doctors and patients who believe in the therapeutic benefits of cannabis. Alongside this tide of resistance runs a rising scientific recognition of marijuana’s potential in addressing a variety of diseases and symptoms. Users and advocates of therapeutic cannabis adamantly insist that federal restrictions must yield to medical realities. The range and quality of scientific evidence favoring a medicinal role for marijuana legitimates the social and procedural experiments in progress in a dozen states. But these measures can only effectively proceed and, perhaps, succeed, if the federal government embraces the right of these states to legislate for their citizens’ health and safety.

The article begins by recounting the history of marijuana legislation in the U.S. and the origins of the plant’s undeservedly bad reputation. The evidence of harm from smoking marijuana was not only falsified, but the prohibition of the “killer weed” was aimed at suspect groups, such as jazz musicians, African-Americans, and Latinos. Reputable studies documenting the minimal dangers of marijuana, such as the 1944 LaGuardia Report and the 1973 Shaffer Commission Report, were shelved or discredited by the federal government. The article then explains how cannabis works as medicine, analyzing the therapeutic virtues and risks of cannabis and the growing dichotomy between botanical and pharmaceutical bases for expanding those uses.

The legal and scientific dilemmas of medical marijuana also provide a case study in what we term “cultural federalism.” The Supreme Court’s 2005 decision in Gonzales v. Raich decided the issue of constitutional federalism. But the phenomenon of “cultural federalism,” defined broadly as the experience of citizenship in a divided polity, with its psychological, social, and ultimately pragmatic components, remains far from resolved. Indeed, as nationwide popular support for medical marijuana continues to rise, and the number of states enacting statutes permitting its use increases, the implacable and vigorous opposition of the DEA suggests that the contest will become far more destructive before it is ended. The article concludes by examining the complex interaction of cultural and scientific forces which impedes rather than inspires a workable medical marijuana policy. The politics of morality has resulted in a federal prohibition impervious to reason or science, even when voices urging a more tolerant view come from credible, established sources appointed by the federal government itself. Medicinal marijuana use may be accompanied with risks, but it is a substance with proven salutary capacity. Given the overwhelming evidence of therapeutic value, the only reasonable-indeed the only sane-policy option is legalization of medical marijuana.

About the author


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