Last week, the Supreme Court heard arguments in the case of Ashcroft v. Raich, a case that touches on the fundamental concerns of federalism and individual liberty. The Court must decide whether the Constitutions 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 physicianshaving concluded that the womens pain could not be relieved with ordinary medicationprescribed marijuana as allowed under Californias Compassionate Use Act.
Both women have experienced beneficial results from the cannabis. Raich, who was once confined to a wheelchair, is again able to walk. Without the use of cannabis, however, her condition will deteriorate.
One is hard pressed to characterize Raichs and Monsons medicinal use of cannabis as interstate commerce. 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. But in the world of Commerce Clause jurisprudence, 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 empowers Congress to 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 exchange or trade; 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 homegrown crop. Instead, they sought to create a great free-trade zone within the United States by removing internal trade barriers, as Alexander Hamilton and James Madison noted in The Federalist Papers. 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.
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.
Hamiltons and Madisons interpretative guidance aside, as a textual matter agriculture cannot be read as commerce. Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. And because commerce must mean the same thing in relation to the states, Congress cannot regulate state agriculture either. (Congressional regulation of the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries would be consistent with Madisons and Hamiltons emphasis on goods crossing state borders, however.)
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 President Franklin D. Roosevelts Agricultural Adjustment Act. In Wickard v. Filburn, the Court was presented with the question of whether Congress could regulate a farmers 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 farmers 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 governments 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, 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 governments reasoning, Congress could regulate procreation because a rise in the population could affect the interstate market and price of cannabis! If the governments 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 governments 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 in tact.
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 many 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.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.
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