Posted on 12/17/2004 9:12:14 AM PST by inquest
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.
The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with an awful array of diseases, including tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was again able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.
But under the federal Controlled Substances Act of 1970, the possession of marijuana for any reason is illegal. The question for the court is which law should prevail in this case: state or federal?
Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Does Congress have the right to criminalize the possession of minuscule amounts of marijuana, not bought on the illicit drug market, and used as medicine?
Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?
According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.
The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, for his family, some he fed to his livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?
But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.
Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, in fact, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.
But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
He didn't say for the positive benefit of the General Government.
Baloney. These are your referenced letters. You should read them sometime.
In Madison's first letter to Cavel, he certainly does say that the Commerce Clause may be used discourage foreign imports to encourage local manufactures. Well, does he or not?
In his second letter, he admits to Cavel that this application of the Commerce Clause wasn't the original intent. Does he, or not?
(His close friends called him Cavel)
That brings us back full-circle to the statement from you, at #25, that initially prompted my response. You said, "Do you believe the Founding Fathers would give Congress the power to regulate interstate commerce, yet allow the individual states to undermine and subvert their regulatory efforts?"
Here you were invoking what you thought to be original intent. I said to you that your understanding of their intent is wrong, and that therefore you shouldn't rely on it in support of your argument. You're now saying that original intent is irrelevant, so that still confirms my statement: You shouldn't rely on it in support of your argument.
He does.
In his second letter, he admits to Cavel that this application of the Commerce Clause wasn't the original intent. Does he, or not?
He does not admit that this application of the commerce clause was not the original intent, insofar as it pertains to foreign commerce. In fact he says in his first letter that it was indeed the original intent of the commerce power, as it pertains to foreign commerce, to promote manufactures through tariff protection.
Brown did not overrule Plessy, in fact, it explicitly refused to do so.
Brown cited "modern psychological research" to forbid segregation's damaging effects on young minds.
This travesty greatly increased USSC power for no reason, since Brown was as pure an equal protection case as anyone could imagine. Deciding Brown on XIV Amendment grounds, however, would have thrown out Plessy, and Warren did not have the votes to do that.
Except then there would have to be actual data supporting the claims of "medical" marijuana.
If Congress has plenary power to impose restrictions on any and all forms of commerce, even those which occur entirely within the confines of a single state, what is the purpose of the words [quoting from memory] "...among the several States, and with foreign nations, and with Indian Tribes?"
It is by no means necessary to find that all of the words in a law change the meaning compared with what it would be in their absense, but they should at minimum allow a reader to think some particular interpretation is more or less plausible than it would be in those words' absense.
For example, the opening phrase of the Second Amendment: "A well regulated militia being necessary to the security of a free state" is not restrictive the second part, but does clarify that the "arms" referred to in therein aren't just "hunting and sporting firearms".
So returning to 1.8.3, what interpretation is either made possible or precluded by the "...among the several states, etc." language? Why did Madison not just write "to pass laws related to Commerce;" and be done with it?
No I wasn't. It was just a general question meant to provoke thought. I made no claim of "original intent", nor did I apply any relevance to it.
How in the heck did you read all that into my question? Geez, cut down on the caffeine, would you?
Oh, and you can answer the question if you'd like.
Yes.
In his second letter, he admits to Cavel that this application of the Commerce Clause wasn't the original intent. Does he, or not?
No. The seeming contradiction is created by you when you try to extend the commerce power to prohibit foreign trade to include prohibiting internal trade.
Aspirin has never undergone all the paperwork protocols that would be required to bring a drug to market today. Should it be taken off the market until someone does all the necessary research? If it was, would anybody do the necessary research given that asprin is non-patentable?
There are some people whose lives are clearly and unambiguously improved by smoking pot. There are other people whose lives are made worse. There are many others whose lives aren't really affected much one way or the other. Unfortunately, when banning pot, or guns, or most other products that can be good or bad, the people most affected by the ban are usually the ones for whom the products would be beneficial.
He said it was not intended "for the positive purposes of the General Government", when applied to the regulation of commerce among the several states.
Congress has no power to regulate the commerce which occurs entirely within the confines of a single state. Congress does have the power to regulate the commerce which occurs entirely within the confines of a single state if that commerce has a substantial effect on the interstate commerce that Congress is regulating.
"A well regulated militia being necessary to the security of a free state" is not restrictive the second part,"
I don't want to go off on a second amendment tangent here, but a number of lower federal courts have ruled that it is restrictive.
I'm assuming the above is your opinion?
No I wasn't. It was just a general question meant to provoke thought.
It's pretty obvious that your question was worded in such a way as to elicit a particular answer.
Congress can regulate commerce with foreign Nations for the positive purposes of the General Government, is that correct?
But you're saying that Congress cannot regulate commerce among the several states for the positive purposes of the General Government, is that correct? Can you tell me why not?
For starters.
Then, I'd like to see how "medical" marijuana stacks up against the 10 to 20 existing FDA-approved drugs that have been on the market for the last 10 to 20 years.
People are talking about marijuana like it's some miracle drug that will do things no other drug can. So far, it seems to come in close to the bottom when compared to existing drugs. It's crap.
Logically, yes. And if we weren't talking about marijuana commerce, you would see that.
Can you give any example of any commercial activity someone could engage in that could not somehow affect interstate commerce?
"A well regulated militia being necessary to the security of a free state" is not restrictive the second part,"
I don't want to go off on a second amendment tangent here, but a number of lower federal courts have ruled that it is restrictive.
A number of lower courts have cited the syllabus from U.S. v. Miller. Whether this is a result of judges being lazy or having an agenda I won't say, but a syllabus to a court decision has no legal weight (it generally isn't even written by a judge). In U.S. v. Miller, the Supreme Court held that the first part of the amendment serves to define the term "Arms" used by the second. The term does not extend to everything that could conceivably be used as a weapon, but rather to those items which would be well-suited for use as arms in a well-functioning citizen army. The Supreme Court held that it was the duty of the defendant to supply evidence of such suitability. Had the government not offered the surviving co-defendant a plea-bargain for time served, he would have been able to present such evidence and thus prevailed.
Can you think of any other court decision in which the government has offered a defendant a plea-bargain after "winning"?
Please read my entire post. I said, "Congress does have the power to regulate the commerce which occurs entirely within the confines of a single state if that commerce has a substantial effect on the interstate commerce that Congress is regulating.
If your intrastate activity is not substantially affecting some commerce that Congress is currently regulating, you're golden. This would leave out things like your own local radio station, private airport, railroad, things like that.
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