Commercial Potential

How marijuana and wine can improve our balance


Two years ago a drug raid in Butte County, California, led to a three-hour standoff. It was not the sort of standoff you usually read about in the papers or see depicted on TV, pitting police against desperate criminals. It was a standoff between local and federal law enforcement officials, with implications that extend far beyond those of the typical drug bust.

Deputies from the Butte County Sheriff's Department and agents from the U.S. Drug Enforcement Administration arrived at Diane Monson's home in Oroville with a common purpose: investigating marijuana cultivation. But once Monson explained that she was using marijuana at her doctor's recommendation to treat the pain and muscle spasms caused by a degenerative spine disease, the deputies concluded her six plants were legal under California's Compassionate Use Act.

The DEA agents, by contrast, viewed the cannabis as contraband under federal law, so they still wanted to chop down the plants and take them away. Ultimately, that's what they did, despite the intervention of Butte County District Attorney Mike Ramsey, who called U.S. Attorney John Vincent and asked the feds to back off.

In a case the U.S. Supreme Court is scheduled to hear next month, it will decide who should have won that argument. Its decision will hinge on how broadly it reads Congress' authority to "regulate Commerce…among the several states," the constitutional basis for the Controlled Substances Act and the main pretext for expanding the federal government since the New Deal.

Last December the U.S. Court of Appeals for the 9th Circuit noted that Monson's marijuana cultivation bore little resemblance to interstate commerce: It wasn't commercial, and it wasn't interstate. Concluding that the Controlled Substances Act "is likely unconstitutional" as applied to people who use cannabis for medical purposes in compliance with state law, the 9th Circuit said a federal judge had erred in refusing to protect Monson and another patient, Angel McClary Raich, against future federal raids.

Appealing that decision, the Justice Department is pushing a view of the Commerce Clause that leaves virtually nothing beyond the federal government's reach. Although growing a few marijuana plants for your own medical use may not be interstate commerce, the government argues, it's still a federal concern because it's part of a class of activities that together have a "substantial effect" on interstate commerce.

Another controversy the Supreme Court will consider this year suggests how distant that reading is from what the Framers had in mind. This dispute involves not patients desperate for relief from their symptoms but oenophiles eager to enjoy the offerings of boutique wineries. They are frustrated not by federal law but by state bans on direct shipment of alcoholic beverages from out-of-state sources.

While the marijuana case is a good example of what the Commerce Clause does not cover, the wine case is a good example of what it was meant to prevent. As Supreme Court Justice Clarence Thomas has noted, at the time the Constitution was adopted commerce was understood to mean the buying and selling of goods (as opposed to their manufacture). And as scholars such as Boston University's Randy Barnett have pointed out, regulate generally meant "make regular."

Those meanings make sense in light of the Commerce Clause's main purpose: creating a nationwide free trade zone. The bans on interstate wine shipments clearly are inconsistent with that goal.

Defenders of the bans, which mainly benefit the wholesalers through whom out-of-state wine sales legally must flow, point to the 21st Amendment, which repealed Prohibition while giving states special authority to regulate alcohol distribution. But the Supreme Court has said that amendment cannot be used as an excuse for economic protectionism, the apparent goal of laws that discriminate against out-of-state businesses.

Last year the U.S. Court of Appeals for the 6th Circuit ruled that Michigan had failed to justify its wine shipment ban based on the "core concerns" of the 21st Amendment. This year the U.S. Court of Appeals for the 2nd Circuit reached the opposite conclusion about New York's ban, creating a conflict the Supreme Court will now resolve.

Together with the medical marijuana case, the wine controversy offers an opportunity to reaffirm the balance between state and federal power at the center of our constitutional design. Although it receives less attention than the explicit protections in the Bill of Rights, this balance can accomplish at least as much for liberty by pitting potential tyrants against each other.