Law and policy don’t really mix


I Think it was the moot Supreme Court argument presented by Randy Barnett to a panel of prestigious legal scholars that finally convinced me what a pathetic tool the law is when applied to issues of public policy. Many of you reading this may wonder what took me so long to come to this conclusion, and I guess my only excuse is that I was fooled by the constant introduction of public policy issues into the all the legal questions studied as part of the first-year curriculum. Every issue has to have a policy argument attached to it, and the professors love to ascribe all sorts of social developments to the legal maneuvering of adept practitioners. While this is wonderful in theory, it seems to not play out that smoothly in practice.

The argument Randy Barnett presented last week was a rehearsal for the oral argument he will be presenting before the United States Supreme Court in the medicinal marijuana case (Raich v. Ashcroft) coming out of California. He is arguing in favor of the granting of a preliminary injunction that would prevent the government from interfering with the growth of marijuana for legitimate medical uses or arresting its growers. His argument is based on the idea that the interstate commerce clause cannot reasonably be stretched to give the federal government the power to regulate the growing and personal consumption of marijuana for medicinal purposes if the activity never crosses state lines. His arguments appeal to me both legally and socially, but his interaction with the court horrified me.

The issue of medicinal marijuana intimately affects the lives of people who are sick and desperate for relief that can only be granted by the smoking of a harmless plant. In general, the narcotics laws in this country have very little relevance to the reality of the dangers posed by consumption, as alcohol and nicotine (legal) are infinitely more harmful and addictive than marijuana (illegal). What bothered me most while watching the Moot Supreme Court argument was the total disconnect between the argument presented and the reality of the issue in contention. It was as if the real issue, which is whether or not medicinal marijuana should be legal, was totally ignored in favor of verbal manipulations of laws and opinions written by mere men. Men whose words have somehow taken on superhuman proportions. Men who apparently never considered these dilemmas, because if they had, we might have more guidance today then the scarce hints we imagine we find among their writings.

Randy Barnett attempted to make his ideas seem like the logical outgrowth of prior Supreme Court decisions, and the “court” threw up arguments counter to that proposal. What no one did was discuss the real issue – whether marijuana should be legal for medicinal purposes. Not a word was spoken about the pros and cons of such a policy. The real question seemed so irrelevant, replaced by arguments over whether or not a line placed in a Supreme Court opinion supported the extension of the interstate commerce clause.

What is it about law that encourages cases and controversies to center not on issues of wrong and right but on arcane rules and principles that bear little relevance to the realities of the situation? Many judges and legal scholars seem to understand this problem, and react by picking a side first and only afterwards worrying about making it fit with the legal principle. Assuming that the judges pick the right side, this process could result in decisions that bear a closer resemblance to truth than what would come from adhering to the strict legal doctrine. But the fiction seems to be a tremendous waste of time and energy for everyone involved.

While I am not advocating an ad hoc system of adjudication, where judges decide every case based on what they perceive to be justice, there must be a better system than the one we are dealing with today. Maybe we can reach some sort of balance between the need for a consistent set of legal decisions and the quest for truth and justice. Sometimes I wish I could read a judicial opinion that actually addresses the real issue instead of hiding all the questions behind a wall of technicalities. I think that would be so refreshing.

DK is a 1L who wants to change everything about the legal system. Starting with the existence of finals at HLS.

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