WATCHED POT.(Department of Justice)

If hard cases make bad law, as a three-hundred-year-old courthouse saying has it, then the case of Gonzales et al. v. Raich et al. ought to have been easy and good. The case is--or appears to be--about marijuana and illness. On one side is Attorney General Alberto Gonzales, whose et al. consists of the massed power of the United States government. A.G.A.G. et al. take the position that because Cannabis sativa is irredeemably wicked and has no legitimate uses, medical or otherwise, the possession of it, to say nothing of its cultivation, distribution, or sale, is quite properly forbidden by federal law. On the other side is Angel Raich, a thirty-nine-year-old mother of two from Oakland, California. Raich does not have cancer, aids, multiple sclerosis, or epilepsy--the big-ticket ailments whose symptoms can often be palliated by marijuana. But she does have more than her share of physical troubles, including an inoperable (though nonmalignant) brain tumor. Pharmaceutical remedies having proved unavailing, her physician suggested marijuana, which has worked well enough to afford her something like a normal life.

Raich's et al. consists of a couple of anonymous gardeners who tended the plants whose buds she baked into cookies, and a second California woman, Diane Monson, who grows her own, with which, on her doctor's advice, she relieves her otherwise intractable back spasms. Monson did grow her own, at any rate, until agents of the Drug Enforcement Agency came to her house and chopped down her plants, all six of them, with machetes while she, Barbara Fritchie-like, read aloud the text of Proposition 215, the popular initiative by which California, nine years ago, approved the medical use of marijuana. You might say, therefore, that Raich's et al. also includes, in spirit, the millions of Californians who voted for Prop 215, plus the voters and legislators of the ten other states where medical-marijuana laws have been enacted, plus the Institute of Medicine, the American Academy of HIV Medicine, the American Academy of Family Physicians, the American Nurses Association, the American Public Health Association, the California Medical Association, the Lymphoma Foundation of America, the New York State Association of County Health Officials, and the Medical Society of the State of New York, plus peer-reviewed publications such as The Lancet and the New England Journal of Medicine--all of which have attested to marijuana's medical usefulness.

Earlier this month, by a vote of six to three, the Supreme Court went with the A.G. and his et al., leaving Raich and hers in the lurch. But the ruling had nothing to do with marijuana's wickedness (which none of the four written opinions, two on each side, took seriously) and little to do with its efficacy in relieving suffering (which all four took for granted). To make sense of Gonzales v. Raich, a Supreme Court Decoder Ring, available with three box tops from Original Intent Cereal, would be a valuable accessory. The ruling, you see, was all about the Constitution's commerce clause, the one that authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." The majority asserts demurely that its ruling is "a modest one." The Justices do not say that the federal ban on marijuana is a good idea, or that it makes sense to punish the sick for using it, or that a sick person growing her own pot in her own back yard is engaged in Commerce among the several States. It does not even say that the aggregate production of back-yard medicinal-marijuana gardens would "substantially affect interstate commerce." All it says is that "a 'rational ...