Live by the Commerce Clause...

Julian Sanchez | June 7, 2005

There's an interesting discussion (well, bits anyway) in the comments at this post on the Washington Monthly's blog Political Animal. Jacob Levy points out that, pace Kevin Drum, conservative pundits have mostly stayed true to their principles in their reaction to this decision. Interesting also to see a number of liberals saying things to the effect of: "I'm all for a broad Commerce Clause power, but this is obviously beyond the pale—growing pot for your own consumption isn't 'commerce'!"

The thing is, as another commenter notes, this seems in many ways to fall squarely within the scope of the Wickard v. Filburn ruling. Randy Barnett did his damndest to distinguish them, but if wheat grown for personal consumption (which might nevertheless indirectly affect prices in interstate wheat markets) falls under the commerce power, it's pretty tough going to argue that marijuana grown for personal consumption doesn't. If you think the court made the wrong call here, what it really entails is that you think the court should revisit Wickard. But stare decisis is a harsh mistress...

Addendum: Will Baude over at The New Republic makes an argument similar to (my recollection of) Barnett's: There needs to be an empirical showing that California would be unable to prevent Cali-pot from seeping into the interstate markets. Of course, there's still the Wickard-esque argument that patients unable to grow their own might have recourse to dope from the illegal market, some of which might come from out of state. (Though, really, if you're in California... why?) But you'd think the government would rather welcome a policy that had the effect of reducing demand in illegal interstate or international markets.

Also, Matt Yglesias makes me sad sometimes. He's right, I suppose, that a decision in Raich limiting federal power could have "bad consequences" from a modern-liberal perspective, but doesn't get at what one hopes would be the core question: Is there really a sane reading of the Constitution on which growing dope in your garden for your own use is interstate commerce?

Comments

|6.7.05 @ 2:20PM|#

Stare decisis is a scaggly, tattooed, wrinkled, botoxed whore past her sell-by date.

Or not. I was just playing with the "harsh mistress" idea.

|6.7.05 @ 2:21PM|#

I don't care a wit for the legal merits, but imho a better situation would be allowing broad federal regulation with better mechanisms in place to limit abuse. Not allowing medical marijuana should be a national scandal, however [and I believe it will be in the future].

|6.7.05 @ 2:36PM|#

What the court has told us is that it's going to take a constitutional amendment to get rid of this Wickard v. Filburn shit. So let's get that amendment drafted and start pushing it. Call it the "constitutional government restoration amendment" or some such.

At the very least, we may be able to see, seat-by-seat, which of our "representatives" are which sort of whores.
--G

|6.7.05 @ 2:42PM|#

"Broad federal regulation" and "limiting abuse" don't really go together all that well. I'd prefer narrow federal regulation, and if something absolutely needs to be added later on, pass an amendment allowing it. I call the idea "enumerated powers".

R C Dean|6.7.05 @ 2:56PM|#

If you think the court made the wrong call here, what it really entails is that you think the court should revisit Wickard.

As I have been saying for years, Wickard was the headstone on the grave of limited government and enumerated powers.

|6.7.05 @ 3:00PM|#

Grant Gould, dream on. :-)

I too have such fantasies of congress restraining itself from legislating everything and everything, but let's not get our hopes up. Besides, there are LOTS of people in this country - I would guess well over 75% of the voting population (total guess, no stats to back that up) - who are quite happy with a powerful legislature and a flexible constitution... as long as their people are in power.

|6.7.05 @ 3:05PM|#

"So let's get that amendment drafted and start pushing it."

Here's my draft language (feel free to propose changes):

The power created by Article I, Section 8, Clause 3 shall only extend to persons, goods, services, and other things transiting among the Several States and the Indian Tribes, and between the United States and foreign Nations, for commercial purposes.

(The capitalization and language look odd because I've attempted to mirror the Commerce Clause's wording.)

Think we could get Ron Paul to submit it?

|6.7.05 @ 3:11PM|#

Jason-Only 75%?

|6.7.05 @ 3:15PM|#

Heh... sorry, I'm an optimist inspite of knowing better, Number 6

:-)

|6.7.05 @ 3:29PM|#

I think the reaction-as-expected had a lot to do with which way the ruling came down. If they had ruled in favor of medical marjuana, a lot of cultural conservatives/drug war types would have been screaming about it. But because the ruling didn't actually upset anything, only the people who were following the issue closely have much reaction to it.

|6.7.05 @ 3:52PM|#

So now the SCOTUS is using Wickard to protect an ILLEGAL market??

What about the poor brothels being put out of business by chicks who put out for nuthin'?

PintofStout|6.7.05 @ 4:00PM|#

Bravo, jc!

|6.7.05 @ 5:31PM|#

Good one jc, but I think women who masturbate would be the targets of a Wickard-esque decision in regard to prostitution.

Of course, there's no federal law against intrastate prostitution. At least not yet...

Larry A|6.7.05 @ 5:34PM|#

Is there really a sane reading of the Constitution on which growing dope in your garden for your own use is interstate commerce?

Julian, Julian, Julian. You're using the concept of "sanity" to apply to government again. Wash your hands twice.

|6.7.05 @ 5:35PM|#

I respect Matt Y kind of for the same reasons I respect our local joe. There is something to be said for the liberal who admits that federalism needs to be flushed by a very strong central government for the world to be made in accordance with his ideals. As with most ideologies, many followers of liberalism reject that there is a down side of their preferred policies. Matt has always been explicit that he is fine with tons of regulations and very strong governments.

I similarly respect the libertarian who doesn't feel the need to perform contortions to demonstrate that the market will provide absolutely everything the government does and for the same number of people.

These two kinds of clean ideologal arguments help shed light on what the real trade offs of various policies might be. Unfortunately, most discussions wind up with liberals insisting that they are in fact protecting liberty and libertarians insisting that there is no more risk associated with thier policy preferences.

|6.7.05 @ 5:41PM|#

Well if someone buys a pet bird in, say, Northern California, and that bird flies their coop and somehow lands in their neighbor's garden, and while it's there it eats a pot bud with some seeds in it, and if that bird then -- high out of its mind -- flies to Oregon, and then it takes a crap in some Oregonian's garden, and it ends up crapping out a pot seed, and that seed somehow manages to get lodged in the Oregon soil and grow into a pot plant, well then I can see how the Court got it exactly right in this case.

David Nieporent|6.7.05 @ 6:06PM|#

Here's my draft language (feel free to propose changes):

Okay, how about this:

Amendment XXVIII: With regard to interstate commerce, interstate means interstate, and commerce means commerce. Period. This time, we mean it.

fyodor|6.7.05 @ 6:18PM|#

Jason Ligon,

Humans, gotta love 'em!

|6.7.05 @ 7:13PM|#

"Of course, there's no federal law against intrastate prostitution. At least not yet..."

Is that where he/she bends over the state line?

|6.7.05 @ 7:14PM|#

How long will it take until someone tries to argue that speech really isn't speech but a species of commerce as a commodity in the free market of ideas?

|6.7.05 @ 7:19PM|#

So now the SCOTUS is using Wickard to protect an ILLEGAL market??

Why shouldn't they? You're already required to report income from drug dealing and bribes on your taxes.

Xrlq|6.7.05 @ 8:16PM|#

Is there really a sane reading of the Constitution on which growing dope in your garden for your own use is interstate commerce?

No, but there doesn't need to be. Far be it from me to defend yesterday's ruling, but the real question is (1) whether there's a sane reading of the Constitution in which banning interstate drug trade is a valid exercise of the commerce power, and (2) if so, whether banning personal possession of dope outright is "necessary and proper" to its enforcement. If I agreed with the government on #1, I'd have little choice but to concede #2.

Matt|6.8.05 @ 2:44AM|#

Stare decisis may be a harsh mistress for lower courts, but the Supreme Court has ignored it often enough before, when the justices felt that an old ruling had been decided incorrectly.

And yes, those of us who aren't actually stoned but nevertheless passionately wanted this to go the other way _do_ want to see Wickard overturned. Anyone who knows the history of Commerce Clause jurisdiction can recognize that as the turning point in the course of federal power...and those of us on the libertarian side of the debate are likely, if we know the facts, to regard that decision as one of the worst (if not _absolutely_ the worst) ever made.

The invalidation of Wickard could have been the critical chink in the armor of interventionist government. Few people realize just how many REALLY BAD laws would be invalidated without Wickard to prop them up.

|6.8.05 @ 6:01AM|#

A piece at Wired about a lawsiut to break the Government's monoploy on medical marijuana

http://www.wired.com/news/medtech/0,1286,67780,00.html?tw=wn_tophead_4

|6.8.05 @ 8:45AM|#

My take is that the Commerce Clause's litmus test of "interstate commerce" is akin to the butterfly effect. If I grow a bell pepper in my backyard, then that means there's one less bell pepper that I will be purchasing from the store, which, by all means, might have come from across state lines. Thus, the government may regulate pretty much anything that I do. If I take a shit in my own house, then I am, in effect, not taking a shit at a pay toilet across state lines. So, the government may regulate my shitting. Clarence was right: if the government can regulate this using the "commerce clause", then nothing, NOTHING, is safe.

|6.8.05 @ 8:53AM|#

"If I agreed with the government on #1, I'd have little choice but to concede #2.

Not so, unless your reading of the commerce clause is like my aforementioned "butterfly effect" reading. Personal possession of a good can exist without interstate trading of that good. Interstate trade is not a necessary accompaniment to personal possession/use. Not that I actually agree with #1, but, I'm just saying, #2 does not follow.

Xrlq|6.8.05 @ 11:54AM|#

Not exactly. By its terms, the commerce clause merely authorizes Congress to regulate interstate commerce, not to regulate everything that may impact it in any way. However, the commerce clause is not the only constitutional provision in play here, the other being the "necessary and proper" clause. Clearly, the N&P clause authorizes Congress to do something beyond regulating interstate commerce directly; else the N&P clause would be a nullity. The question is what, and how much.

Suppose, for example, that Congress amended the federal law to allow private, noncommercial possession of all drugs, while imposing Draconian sentences on anyone who sold large quantities of it, intrastate or interstate. Would that not be "necessary and proper" to the enforcement of a ban intended to keep drugs from crossing state lines? How about a ban on dealer quantities (assuming, of course, that the bar is set high enough to only affect dealers and traffickers, not the druggie equivalents of Costco shoppers)?

I'd say in both cases that the "necessary and proper" test is met in both cases; it's just a question of what they were necessary and proper to, and whether that objective was within Congress's commerce power.