J. Watkins, Jr.
by William J. Watkins, Jr.
the Supreme Court heard arguments in the case of Ashcroft v.
Raich (No. 03-1454). The issues in Raich touch on the
fundamental concerns of federalism and individual liberty. The Court
must decide whether the Constitutionís Commerce Clause permits Congress,
via the federal Controlled Substances Act, to prohibit the medicinal
use of cannabis.
case will also affect the quality of life and longevity of two seriously
ill California women. Angel Raich suffers from paralysis, an inoperable
brain tumor, seizures, chronic pain, life-threatening weight loss,
and many other ailments. Diane Monson is afflicted with chronic
back pain and muscle spasms caused by a degenerative disease of
the spine. Their physicians concluded that the ladiesí pain could
not be relieved with ordinary medication. Pursuant to Californiaís
Compassionate Use Act, the physicians prescribed marijuana. Under
the Compassionate Use Act, a patient or his primary caregiver may
possess or cultivate cannabis solely for personal medical purposes
of the patient as recommended by a physician.
women have experienced beneficial results from the cannabis. Raich,
for example, was once confined to a wheelchair and is now able to
ambulate. Without the use of cannabis, her condition will most certainly
the matter with common sense, one is hard pressed to characterize
Raichís and Monsonís use of cannabis as "interstate commerce"
subject to congressional regulation. The cannabis at issue is grown
using only soil, water, nutrients, tools, and supplies made or originating
in California. In other words, it is an intrastate, agricultural
activity. If only the world of Commerce Clause jurisprudence could
be so simple. Unfortunately, if a local activity affects or could
affect the national economy, Congress claims the power to regulate
it under the commerce power.
Commerce Clause, in pertinent part, provides that Congress has the
authority "[t]o regulate commerce with foreign nations, and
among the several States, and with the Indian Tribes." At the
time of the Framing, commerce was understood as "[i]ntercourse,
exchange of one thing for another, interchange of anything; trade;
traffick." (See Samuel Johnsonís Dictionary
of the English Language (3d ed. 1765)). It was not understood
to encompass local activities such as agriculture.
permitting Congress to regulate interstate commerce, the Framers
did not contemplate restrictions on cannabis or any other home-grown
crop. Instead, they sought to create a great free-trade zone within
the United States. Alexander Hamilton predicted that an "unrestrained
intercourse between the States themselves will advance the trade
of each by an interchange of their respective productions."
Madison noted that the main purpose of the Commerce Clause "was
the relief of the States which import and export through other States,
from improper contributions levied on them by the latter."
In other words, the Framers sought to remove internal trade barriers.
A nation-wide free trade zone, almost all agreed, would permit the
states to take advantage of division of labor and lessen tensions
as goods freely crossed borders.
anyone claim that the commerce power was a mechanism to interfere
with local affairs, Hamilton specifically noted in Federalist
No. 17 that the Commerce Clause would have no effect on "the
administration of private justice . . . , the supervision of agriculture
and of other concerns of a similar nature."
and Madisonís interpretative guidance aside, as a textual matter
"agriculture" cannot be read into "commerce."
As Richard Epstein has observed, logic dictates that "commerce"
means the same thing in relation to the several states, foreign
nations, and Indians. The Clause would make no sense if we substituted
the word "agriculture" for "commerce": Congress
shall have the power "[t]o regulate agriculture with foreign
nations, and among the several States, and with the Indian Tribes."
Obviously, Congress cannot regulate the crops grown in foreign countries
or in Indian territory. It naturally follows that Congress cannot
regulate the agriculture in the several states either. But Congress
can regulate the interstate traffic in agricultural commodities
or the importation of such commodities from foreign countries. This
would be consistent with the Dr. Johnsonís definition of commerce
as intercourse and Madisonís and Hamiltonís emphasis on goods crossing
under a common sense, originalist interpretation of the Commerce
Clause, Raich and Monson should be permitted to cultivate and use
cannabis for medicinal purposes. But here is where Supreme Court
precedent from the New Deal complicates matters.
1942, the Court considered the constitutionality of FDRís Agricultural
Adjustment Act. In Wickard v. Filburn, the Court was presented
with the question of whether Congress could regulate a farmerís
growing of wheat intended solely for consumption on his farm. A
local activity, lectured the Court, can "be reached by Congress
if it exerts a substantial economic effect on interstate commerce."
Although the 11.9 acres of wheat in question did not seem to affect
interstate commerce, the Court reasoned that the farmerís wheat,
"taken together with that of many others similarly situated,
is far from trivial." Because the growing of wheat for home
consumption by hundreds or thousands of farmers could affect the
demand and price of wheat, the acts of a solitary bucolic soul fall
under Congressí power to regulate commerce.
surprisingly, the governmentís brief in Raich relies heavily
on Wickard. According to the Solicitor General, "[h]ome-grown
marijuana displaces drugs sold in both the open drug market and
the black drug market regulated by [the Controlled Substances Act]."
From this the government concludes that "Congress has the power
to regulate the interstate market in marijuana as well as activity
that substantially affects that market, regardless of the purported
use of the drug." Under the governmentís reasoning, Congress
could regulate procreation because a rise in the population could
affect the interstate market and price of cannabis. If the governmentís
argument prevails, then Congress will have an unrestrained police
power to regulate all facets of American life. The remainder of
Congressí enumerated powers in Article I, Section Eight of the Constitution
will be rendered superfluous.
recent years, the Supreme Court has attempted to impose some limits
on the commerce power. With United States v. Lopez (1995),
the Court held that possession of a firearm in school zones does
not affect the national economy; therefore, Congress cannot ban
firearms in these areas using the Commerce Clause. In United
States v. Morrison (2000), the Court rejected the governmentís
claim that crimes of violence motivated by gender affect interstate
commerce so as to permit the creation of a federal, private right
of action. While the trend is to circumscribe the commerce power,
both decisions left Wickard intact.
decision in Raich will have far reaching implications. California
is but one of nine states that permit use of cannabis for medicinal
purposes. And in these nine states there are a number of individuals
like Raich and Monson who depend on cannabis to relieve their chronic
conditions. We can only hope that the Court continues to limit Congressí
abuse of the Commerce Power. Principles of federalism, individual
liberty, and compassion all counsel a ruling in favor of Raich and
J. Watkins, Jr. [send him mail],
is a research fellow at the Independent
Institute, and the author of Reclaiming
the American Revolution: The Kentucky and Virginia Resolutions and
© 2004 LewRockwell.com