The Sainted Clause

By David Morris, AlterNet. Posted June 15, 2005.

The most sobering aspect of the recent Supreme Court decision on medical marijuana was that it was essentially a decision made by progressives and, on the whole, supported by progressives. Don't they understand that this could not be a worse historical moment to grant the White House and Congress expanded authority to criminalize individual behavior?

The case hinged on whether the feds have the right to literally invade the backyards of two California women and arrest them for using homegrown marijuana even though their actions are legal in California. The Bush Administration argued that it does, because the Commerce Clause of the Constitution gives Congress the right to regulate "Commerce...among the several States."

For almost 70 years, progressives have used the interstate commerce clause to justify extending the federal reach. Since all commercial actions in modern economies involve interstate commerce, they argue, all commercial behavior is Constitutionally subject to federal jurisdiction. That is why Lester Maddox had to serve blacks at his family owned fried chicken restaurant. His supplies crossed state lines. The federal Civil Rights Act applied.

In the 1990s, the Supreme Court began to circumscribe the federal reach. In 1995, it overturned a 1990 federal law criminalizing the possession of guns near schools. The Court noted that possession in and of itself is not a commercial transaction and overturned "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." The Court argued that the Constitution would not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

Later the Court relied on the same reasoning to overturn portions of the Violence Against Women Act of 1994. That Act created a federal civil remedy for victims of gender-motivated violence. The Court concluded that this was not an economic activity.

In the medical marijuana case, the Supreme Court, by a 6-3 vote, ruled that these precedents were not determinative. Four liberal justices (Breyer, Ginsburg, Shouter and Stevens) were joined by two conservatives, Scalia and Kennedy.

While the possession of a gun is not in and of itself a commercial activity, the possession of marijuana is. Writing for the majority, Justice Stevens, at the outset, expressed his sympathy with the hundreds of thousands of people who "will suffer irreparable harm." The majority agreed that marijuana helped alleviate the defendants' excruciating pain as determined by their physicians. The majority agreed that the marijuana consumed was not purchased or sold and that all of the supplies used in growing it came from inside California. They also agreed that the citizens of California, by a wide margin, voted to approve the use of marijuana for medical purposes.

Yet they decided that in this instance, the federal will was determinative. While possession of a gun was not a commercial activity, possession of marijuana was. And although no part of the transactions involved crossed state lines, the impact of allowing people to grow their own medicine would inevitably undermine Congress' desire to stop them from doing so.

Sandra Day O'Connor, who had voted with the majority to restrict the right of the federal government to implement the Violence Against Women Act, spoke out vigorously against the majority's refusal to follow its own precedent. She noted that Court was establishing a very dangerous precedent. It was creating a federal police power. The right to criminalize behavior has traditionally rested with the states.

As O'Connor noted, "The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens."

Progressive politicians were palpably unwilling to speak out about the Court's decision. I'm unclear why. Last July, on a vote in the House of Representatives barring the federal government from sending police into states that allow medical marijuana, two thirds of the Democratic Party voted to limit federal intervention; 90 percent of the Republican Party voted to allow it. With nine states having passed medical marijuana legislation -- all but one by a direct vote of its citizens -- one would think the Democratic Party would want the voters to know which side it is on.

But progressives have a problem. Despite the hardship and pain and even deaths that will result from aggressive federal actions against medical marijuana, progressives believe that a higher principle is involved. They believe in big government. The Los Angeles Times declared, "If this editorial board were Congress, we would enact a law allowing marijuana to be used for legitimate medical purposes...But we are not Congress--and neither is the Supreme Court. So we cannot be terribly offended by Monday's ruling, however much needless suffering it may causes."

Why? "Given how many policies this page has happily urged the federal government to impose on...well, Alabama and Mississippi and South Carolina, if not California, that clearly means supporting the court's decision."

The New York Times echoed the sentiments of its West Coast counterpart. "We read the Supreme Court's decision on the medicinal use of marijuana with mixed emotions." The Times opposes the use of federal agents to arrest people for using medical marijuana in states that allow it. "But we take very seriously the court's concern about protecting the Commerce Clause, the vital constitutional principle that has allowed the federal government to thwart evils like child labor and segregation."

Both newspapers are willing to condemn hundreds of thousands, even millions of people to "needless suffering" in order to defend the right of the federal government to ban child labor or require restaurants to serve all races. In my judgment, such a tradeoff is unnecessary. In the medical marijuana case, Congress criminalized individual behavior that is legal at the state level and does not involve interstate commerce or indeed, commerce at all. Stripping Congress of this right would not condemn America to regress back into its dark past.

The Bush Administration has demonstrated a willingness, even an eagerness, to arrest people for their non-commercial behavior. This is the moment where we need to demand that our states defend us against this encroaching tyranny. Progressives know that is right. Moreover, they know it is a winning political issue. The only thing paralyzing them is their near-worship of the magic of the Constitution's Commerce Clause. The Court's medical marijuana decision should force them to reexamine that devotion.

David Morris is co-founder and vice president of the Institute for Local Self Reliance in Minneapolis, Minnnesota and director of its New Rules project.

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