Posted on 06/10/2005 4:17:33 PM PDT by Wolfie
No Clause for Celebration
USA -- In its recent decision upholding the federal government's authority to pluck marijuana from the hands of desperately ill people who use it as a medicine, the U.S. Supreme Court noted in passing that "most domestic drug regulations prior to 1970 generally came in the guise of revenue laws." That's a puzzling fact if, as the Court now insists, the power to "regulate Commerce...among the several States" includes the power to ban certain plants and their products from backyards and dresser drawers throughout the nation.
As the Court explained, the Marihuana Tax Act of 1937 "did not outlaw the possession or sale of marijuana outright." Instead it imposed tax, registration, and reporting requirements that made legal possession of the drug prohibitively expensive and burdensome. Members of Congress would not have taken this complex, indirect approach (aspects of which ultimately were ruled unconstitutional) if they thought they could get away with a straightforward ban simply by citing the Commerce Clause.
The fact that Congress felt it had to disguise its first marijuana law as a tax measure suggests how far we have traveled since the 1930s from the plain meaning of the Commerce Clause, which has been transformed into an all-purpose excuse for federal meddling. As a result, individuals oppressed by an overbearing national government cannot realistically expect Congress to explain how its actions are authorized by the Constitution. Instead they must search for a constitutional provision that protects the specific freedom they wish to exercise—precisely the situation the Framers sought to avoid by creating a federal government of limited and enumerated powers.
In the medical marijuana case, two California women, Angel McClary Raich and Diane Monson, noted that their use of homegrown cannabis to treat the pain and nausea caused by various debilitating conditions, as recommended by their doctors and permitted by state law, was neither "interstate" nor "commerce." Hence banning it could not reasonably be considered regulation of interstate commerce.
The U.S. Court of Appeals for the 9th Circuit agreed, but the Supreme Court did not. Now Raich and Monson must return to the 9th Circuit, where they can argue that the doctrine of medical necessity should protect them from prosecution and that federal threats to seize their marijuana and arrest them violate their Fifth Amendment rights to due process.
In addition to shifting the burden of justification from the government to the individual, the Supreme Court's expansive reading of the Commerce Clause shifts the balance of power between the federal government and the states. As Justice Sandra Day O'Connor noted in her dissent, California's decision to allow the medical use of marijuana is a clear example of the policy experimentation federalism is supposed to allow.
"If Congress can regulate [homegrown medical marijuana] under the Commerce Clause," Justice Clarence Thomas wrote in a separate dissent, "it can regulate virtually anything." According to the majority's reasoning, Thomas and O'Connor noted, such local, noncommercial activities as quilting bees, clothing drives, potluck suppers, windowsill gardening, and child care could be subject to federal regulation.
Antonin Scalia and Anthony Kennedy, two justices who in the past have opposed an infinitely elastic Commerce Clause, went along with the majority's absurdly broad interpretation, apparently because they felt constrained by bad precedents and bad laws they were not prepared to overturn. If, as the Court held in 1942, preventing a farmer from growing wheat for his own consumption can be a legitimate part of a broader regulatory scheme aimed at controlling interstate commerce in wheat, it would seem that preventing a woman from growing marijuana for her own consumption is a legitimate part of a broader regulatory scheme aimed at controlling interstate commerce in marijuana.
The majority correctly worried that to rule otherwise would jeopardize the Controlled Substances Act, since a similar logic would apply to local production and possession of marijuana (and other drugs) for recreational use. As Thomas noted, "No evidence from the founding suggests that 'commerce' included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."
To ban marijuana, Congress should have amended the Constitution through the arduous process prescribed by the Framers, just as it did when it banned alcohol. Instead it has amended the Constitution through legislative assertion and judicial acquiescence.
Thank god for Clarence Thomas. Too bad that O'Connor and Renquist on the most likely to step down.
I thought libertarians argue that the courts are our only hope for protecting individual liberty????
All judges should be elected. They need to face the people they intend to rule.
I would agree they're the most likely to do so, since they aren't getting lobbied like the Congress and Executive branch, the problem is since FDR filled the court with stooges they've only served to affirm the limitless thirst for consolidating power in Washington, D.C.
If they do then that makes them about as deluded and stupid as conservatives and liberals doesn't it?
If, Congress can pass a dungball bill like CFR, the President will sign it and the Court will approve of it then,...
...there's only one way to stop what is clearly the intent of both parties and all three branches to bury the intent and the vision of the Founders.
Not that I've seen. Perhaps the big "L" Official Libertarians (many of whom are just liberal democrats in disguise).
Most actual libertarians (small "l") I know realize the courts are just as corrupt as the other two branches (just look at Ruth Bader Ginsberg). As such, they consider their rifles as our only hope for protecting individual liberty.
ping
The obvious thing now is for Congress to ban or regulate abortion, arguing that it has the right to do so under the Commerce Clause, since abortions are a service for which there is an interstate market.
If that gets tossed out, the next step is for the medical marijuana folk to file an appeal against the Federal statute citing the 'generalized right to privacy' in the 'reasoning' in Roe, and the precedent the previous case established holding that it trumps Congress's application of the Commerce Clause.
At some point the utter incoherence of our current 'right to privacy' jursiprudence which protects actions of two people (consensual sodomy) and involving four--the mother, the father, the child and the abortionist--and a commercial transaction outside the home (abortion on demand), but not the utterly private act of growing one's own marijauna (or for that matter opium poppies, peyote, . . .) in the privacy of one's home and using it likewise, should start to be manifest to all.
Whether this will have the salutory effect of overturning Roe, or the salutory (though less desirable) effect of bottling up the Commerce Clause in the meaning of original intent, I don't know. But if it has neither, we should be able to make laughing-stocks of our activist judiciary in the public mind by pointing out their idiocy.
Libertarian ping.To be added or removed from my ping list freepmail me or post a message herein the links below pay special attention to the reasons the spelling was changed from marihuana wich was the traditional spelling before 1937 to mariJuana after 1937
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