Commerce Abuse

by William J. Watkins, Jr.
by William J. Watkins, Jr.

Yesterday, 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 Constitution’s Commerce Clause permits Congress, via the federal Controlled Substances Act, to prohibit the medicinal use of cannabis.

The 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 ladies’ pain could not be relieved with ordinary medication. Pursuant to California’s 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.

Both 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 retrograde.

Approaching the matter with common sense, one is hard pressed to characterize Raich’s and Monson’s 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.

The 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 Johnson’s Dictionary of the English Language (3d ed. 1765)). It was not understood to encompass local activities such as agriculture.

By 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.

Lest 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."

Hamilton’s and Madison’s 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. Johnson’s definition of commerce as intercourse and Madison’s and Hamilton’s emphasis on goods crossing state borders.

Thus, 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.

In 1942, the Court considered the constitutionality of FDR’s Agricultural Adjustment Act. In Wickard v. Filburn, the Court was presented with the question of whether Congress could regulate a farmer’s 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 farmer’s 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 Congress’ power to regulate commerce.

Not surprisingly, the government’s 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 government’s reasoning, Congress could regulate procreation because a rise in the population could affect the interstate market and price of cannabis. If the government’s argument prevails, then Congress will have an unrestrained police power to regulate all facets of American life. The remainder of Congress’ enumerated powers in Article I, Section Eight of the Constitution will be rendered superfluous.

In 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 government’s 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.

The 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 Congress’ abuse of the Commerce Power. Principles of federalism, individual liberty, and compassion all counsel a ruling in favor of Raich and Monson.

November 30, 2004

William 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 their Legacy.

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