one Section 8 of the U S Constitution states that the “congress
shall have the power to regulate commerce among the several states….”
This so-called “commerce clause” is the legal bedrock for all federal
regulation of business activity that crosses state lines. Every
piece of federal economic regulation from the Sherman Antitrust
Act (1890) to all of the 1930s New Deal securities and banking law
has been rationalized (made “constitutional”) by reference to the
WICKARD v. FILBURN (1942), the Supreme Court expanded the original
interpretation of the commerce clause to cover intrastate economic
activity that was said to “affect” interstate commerce. Wickard
grew wheat for his own consumption but the court reasoned that the
wheat locally consumed could, theoretically, have been sold in interstate
commerce; so when Wickard “withdrew” that wheat and consumed it,
output and prices in interstate commerce were affected. Hence the
Feds could regulate locally grown wheat and the legislation that
prescribed that was constitutional.
“logic” of WICKARD obliterated two original and important constitutional
principles, namely (1) that the states can regulate their own commerce,
not the Feds and (2) that the federal Constitution embodies only
limited and clearly enumerated powers. WICKARD substantiated the
notion that the Feds could now regulate ANY economic activity (with
little resistance from individuals or the states) since almost ANY
good or service produced and consumed locally could, at least theoretically,
affect interstate commerce. We have all lived in a post-WICKARD
regulatory world ever since.
in some sense, the medical marijuana case decided June 6th (GONZALES
v RAICH, ET AL.) in favor of the government (6-3) was an easy slam
dunk. Reich and the other defendants in California grew marijuana
for their own consumption but the majority asserted, following WICKARD,
that such private activity “affected” interstate commerce and, thus,
could be regulated (prohibited) by the federal Controlled Substances
Act (CSA), regardless of California state law which allowed (with
supervision) such activity. If you don’t like the decision, the
majority suggested, get the votes and attempt to change the federal
are many problems with the majority opinion written by Justice Stevens.
The most obvious is the continued acceptance of the logic of WICKARD.
As Justice Thomas argues in his brilliant dissent, if growing 6
marijuana plants on your own property for your own consumption is
“economic activity” that can “affect” interstate commerce, then
there is absolutely nothing under the economic sun (including pot
luck dinners) that cannot be regulated by the federal congress.
But, clearly, that was not the intent of the framers of the Constitution.
even more fundamentally, the Commerce Clause itself was never meant
by the Founders to be a blank check for “command and control” economic
regulation. Indeed, the economic purpose of Article one Section
8 was almost precisely the opposite of the conventional explanation
accepted by the majority in this case.
original intent of the Commerce Clause was to make “normal” or “regular”
commerce between the states; thus it was designed to promote trade
and exchange not restrict it. Further, it was specifically aimed
at preventing the states from enacting impediments to the free flow
of “commerce” such as tariffs, quotas and taxes. And since the explicit
language of the CSA, like all economic regulation, interferes with
the free flow of commerce, it is inherently antithetical to the
original intent of the Commerce Clause. (Whether the law could be
legitimized by reference to the “police powers” of the state is
commerce clause was never meant to prohibit sick individuals from
consuming plants grown on their own property. Yet to acknowledge
that fact, the Supreme Court majority would have had to rethink
the core principles of individual liberty and the entire legal foundations
of our regulatory society. And that they chose not to do.