Constitution #1: The Commerce Clause

The Objectivist
THE INCREDIBLE SHRINKING CONSTITUTION
Dunkirk-Fredonia Observer
January 14, 2008

Perhaps the most significant political event in the recent decade was a little noticed Supreme Court case, Gonzales v. Raich, 545 U.S. 1 (2005), that ratified the Depression-era rewriting of the U.S. Constitution. In 1996, California voters passed Proposition 215, which permitted seriously ill patients to use medical marijuana when they had a physician’s recommendation. At the federal level, however, marijuana was illegal under the 1970 Controlled Substances Act (CSA). The CSA made it a Schedule I drug, which resulted in a ban on its manufacture, distribution, and possession. Congress did so on the basis that marijuana had a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.

As a side note, the Congressional finding conflicts with that of a number of respected medical groups, such as the British Medical Association, which have backed the medical use of marijuana.

This case involved Angel Raich and Diane Monson of California who suffered from a variety of painful and debilitating medical conditions and used medical marijuana to alleviate their suffering. The federal government conceded that both used the drug as medication for several years, did so pursuant to their doctors’ recommendations, and relied on it to function on a daily basis. Raich’s physician claimed that if she stopped using marijuana, she would suffer excruciating pain and might die. Their use was legal under California law. Raich and Monson sued to stop the federal government interfering with their use of it.

At issue was whether under the Constitution the federal government had the power to prohibit the intrastate (within one state) production and use of medical marijuana. To see the Constitutional issue, consider the structure of the Constitution. The Constitution limits federal powers to those listed in Article I Section 8 of the Constitution. The principal author of the Constitution, James Madison, acknowledged this when he stated that the powers delegated to the federal government are few and clearly defined (Federalist Papers 45). The only section of Section 8 that even comes close to authorizing federal power over medical marijuana is the Commerce Clause. This clause states that “The Congress shall have power … To regulate commerce with foreign nations, and among the several States … .” This structure is bolstered by the Tenth Amendment, which requires that the states and the people have all powers not delegated to the federal government. Under the Constitution, then, the federal government’s powers are few, specifically laid out, and in this context limited to interstate commerce.

The problem is that this case involved purely intrastate and non-commercial activity. The marijuana was produced and consumed solely within California and was not bought, sold, or traded. As a result, federal control over it conflicts with the language, structure, and original intent of the Constitution. Such activity does not meet the definition of “commerce,” which was consistently used during the Constitutional Convention, Federalist Papers, and ratification debates to mean “trade or exchange.” As a result, it would not have fallen under the powers listed in Article I Section 8. Also, Justice Thomas (the Court’s best) noted that the framers would not have considered this an exchange and would have found it obvious that Congress lacked the power to ban or regulate it.

Justice Stevens writing for the liberal block (sadly joined by Justice Scalia) relied on three sketchy arguments to explain how the federal government had power over this isolated intrastate activity.

First, Stevens argued that the production and consumption of medical marijuana in the aggregate substantially affects interstate commerce. It’s worth noting that they had no evidence for this claim. Justice Thomas then demolished the argument. He noted that almost any aggregate activity substantially affects interstate commerce. For example, on this reasoning the federal government could regulate tooth brushing, unhealthy eating, and lack of exercise because in the aggregate they substantially affect interstate commerce.

In addition, he noted that this grant of power would result in there being no powers reserved to the states rather than the federal government. This brutalizes the Constitution.

Second, Stevens argued that the regulation of this activity is essential to the regulation of interstate activity because of concern over whether some of the marijuana produced for medical purposes might be diverted to non-medical uses. Thomas pointed out that in the past, the Court had never allowed the federal government to regulate non-economic activity as a way to control interstate commerce. He noted that if you count this activity as commerce, because it involves the production, distribution, and consumption of commodities, then it is hard why this wouldn’t also be true for quilting bees, clothes drives, and potluck suppers.

Third, Stevens argued that the regulation of the intrastate was incidental to the broader regulation of interstate marijuana trade. This is beside the point because whether governmental intrusion is a goal or incidental, it is unconstitutional if it aims at a distinct activity that is not within the federal government’s authority.

This issue matters because this case in effect puts a stake into the heart of the Constitution. The whole thrust of the Constitution is to limit the size and scope of the federal government. The Articles limits the powers of the federal government and the Bill of Rights (first ten Amendments) further protect against federal power grabs by emphasizing particular rights. Without a limited scope it makes no sense to list the federal government’s powers in Article I Section 8. Nor would the Tenth Amendment make sense because there would be few, if any, powers not delegated to the federal government. This case is in sharp conflict with the original intent of the persons who wrote and ratified the Constitution. They envisioned a federal government with clearly defined and sharply limited powers.

It is also worth noting that these issues have nothing to do with marijuana. Rather, they have to do with whether this country is going to be bound by the Constitution or not. With this decision, the Court decided that it would not and the Constitution became yet another casualty of the drug war.