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.

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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