Commerce Clause Use and Abuse

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Today the Supreme Court will hear arguments in Ashcroft v. Raich, the case that asks whether growing marijuana for your own medical use is close enough to interstate commerce to justify federal intervention. In addition to indicating whether states will be allowed to experiment with new drug policies, the outcome will signal how serious the Court is about enforcing the distinction between state and federal powers. Peter Guither at DrugWarRant has a handy guide to the case.

It would be nice if the Court took this opportunity to renounce the "substantial effects" doctrine, which allows almost anything to be regulated as interstate commerce and has been the main constitutional excuse for expanding the federal government's scope since the New Deal. That is the course urged by the Institute for Justice in its amicus brief (and endorsed by Justice Clarence Thomas in recent Commerce Clause decisions). But it's more likely that the Court will find a way to distinguish homegrown marijuana from homegrown wheat, the focus of the 1942 case that exemplifies this broad reading of the Commerce Clause.

The respondents and several of their supporters note that Roscoe Filburn, the farmer who violated the crop quotas at the center of that case, was undeniably engaged in a commercial operation; that he sold some of his wheat; and that most of the balance was used as feed for cattle or as seed for the following year (i.e., for commercial purposes). They also note that in the aggregate, the amount of wheat consumed on farms represented a substantial share of total production, whereas marijuana used as medicine is a tiny fraction of the total market for cannabis. So despite my initial skepticism that a plausible line could be drawn between the two cases, I have to admit it can be done. And certainly that outcome would be preferable to an understanding of interstate commerce that includes a few marijuana plants on a cancer patient's patio.

The Los Angeles Times ran a story yesterday that noted the conflicts among conservatives highlighted by Raich and by the two cases involving bans on interstate wine shipments that the Court will consider next week. Last month I suggested that, taken together, the wine and marijuana cases illustrate the right and the wrong way to use the Commerce Clause. I suppose the social conservatives who side with a strong central government when it comes to preventing marijuana use and with state governments when it comes to obstructing the trade in alcoholic beverages would agree with me.

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  1. Jacob,
    Your set-up reminded me of this book:
    Death of Common Sense : How Law is Suffocating America
    by Phillip K Howard

  2. I predict the Court upholds the appellate court’s decision, without overturning the post-horse and buggy reading of the Commerce Clause.

    Given 3/4 of a loaf, libertarians commence with the wailing and gnashing of teeth.

  3. “Jacob,
    Your set-up reminded me of this book:
    Death of Common Sense : How Law is Suffocating America
    by Phillip K Howard”

    Don’t you realize that if we start disobeying one law because it’s stupid then people will start disobeying all laws?

    Where will it end? Bow to the Authorities like the brainless worm you are, you ungrateful cretin!

  4. “I predict the Court upholds the appellate court’s decision, without overturning the post-horse and buggy reading of the Commerce Clause.”

    Post horse and buggy reading, eh?

    Spoken like a true “living document” liberal who thinks the Constitution was written on an etch-a-sketch and means whatever they want it mean at any given time.

    Of course this has nothing to do with the actual rule of law.

  5. …and we don’t need no dag-burn fancy-pants new fangled zippers on our trousers, either!

  6. Whether anyone wants zippers on their pants is entirely up to him (or her).

    Whether Supreme Court judges uphold the actual Consitition is not up to them – it’s what they’ve sworn an oath to do.

    And that means enforcing the Constitution literally and exactly as it was written according to the original intent of those who wrote it at the time it was ratified.

    It doesn’t mean creating rationalizations for inventing powers not actually delegated to the government by the document. That’s legislating from the bench.

  7. And that means enforcing the Constitution literally and exactly as it was written according to the original intent of those who wrote it at the time it was ratified.

    Hahahahahahahaha. Oh wait, you probably aren’t joking.

  8. “So, Mr. Madison, when an ISP allows a federal law enforcement agency to look at the subject lines…”

    “My God! The sun is shining indoors! Surely, this must be the Final Days!”

  9. It pains me to see libertarians pretending to think that Wickard v. Filburn made any sense whatsoever.

  10. …and we don’t need no dag-burn fancy-pants new fangled zippers on our trousers, either!

    lol — mr joe, i think we would agree that the idea of “strict constructionism” is ridiculous on its face, a mask by which social conservatives can attack socially progressive justices without seeming to be demanding moral conformity. the point of a broad judiciary is to have justices with a variety of views interpreting the law. likewise, railing against “activist judges” is just so much browbeating from the pulpit of christian cultism.

    but that does not mean that post-fdr (not quite horse-and-buggy) reading the commerce clause hasn’t brought the federal government a level of overarching centralized power that was explicitly forbidden it and which, in an increasingly plebiscitarian society like ours, makes the presidency a despotic timebomb.

    i’m surprised that a liberal (even if a statist) such as you often seem does not see that potential for demagogic despotism quite clearly under bush. do you imagine the republicans in congress anything but white house mouthpieces? or are you so devoted to central authority that you would live under republican presidency ad infinitum?

  11. gaius,

    Please direct me to one example of a present-day non-statist liberal.

    Phil

  12. joe,

    For the Constitution to serve as the sovereign command of the people, superior to the ordinary government, it must have some determinate meaning. If the Constitution can be interpreted by the government so as to infuse it with whatever values they want it to have, why bother with the pretense of a written Constitution at all?

    It’s certainly possible for specific classes of goods or new technologies to be invented that weren’t foreseen by the ratifying generation. But according to the then commonly accepted meaning of “Commerce among the several States” they do not enter the purview of “interstate commerce” until they are actually transported across state lines. Until they do so, they are under the sole regulatory jurisdiction of the states. New phenomena arise that can still be categorized under existing headings. The language of the Constitution is to be read according to the common understanding at the time of ratification: ordinary language is to be read according to common usage at the time, and legal terms of art are to be read as understood by lawyers at the time. I don’t believe this leads to anywhere near the amount of absurdity that devotees of the “living Constitution” claim.

    And BTW, Gilbert Martin, the proper rule of originalist interpretation is not the “intent” of the “Framers.” It is the understanding of the ratifiers. Law is the command of a sovereign. The sovereign authority in question is the thirteen sovereign peoples of the ratifying states, assembled in their conventions. Since the debates in the Federal Convention were not published until well into the 19th century, they are only useful in a secondary and indirect sense for inferring the understanding of the ratifiers. Elliot’s Debates from the ratifying conventions, and the Federalist Papers and other federalist and anti-federalist literature during the period leading up to the conventions, are much more relevant.

    Of course, the Constitution was a federalist coup on behalf of plutocratic interests, and the sovereign role of the people in creating it is a pious myth. But since it’s a myth the current government claims to be bound by, and there are no other chains currently available that are as handy for binding down the government, I say we should hold them to their own professed doctrines until something better comes along.

  13. Kevin-

    The original understanding of the ratifiers might work nicely for short and succinct documents like the Constitution. What about legislation? What is the original understanding of the legislators who passed 3200 page omnibus bills?

  14. The understanding is obvious: the government should never be shut down, lest said stoppage be used against me at my next election. There is nothing deeper than that.

  15. gaius, I agree with you that the commerce clause was stretched too far, and needed to be tugged back, though I suspect we don’t have the same happy medium in mind.

    Kevin, “If the Constitution can be interpreted by the government so as to infuse it with whatever values they want it to have, why bother with the pretense of a written Constitution at all?”

    A common technique among “strict constructionists,” to assume the only alternative to reading the mind of dead men and elevating their prejudices to sacred writ, is to have no limit whatsoever on interpretting the Constitution. I do not believe justices need to pretend to know exactly what punishments Madison would have considered “cruel and unusual.” I do, however, believe they need to fairly, rationally, and with respect for precedent, formulate a working definition of the term during each successive social era. Forcing a drunk driver to spend his sentence in an unheated, lice-infested, dirt-floored hovel without access to anitbiotics would surely be a cruel and unusual punishment, despite the fact that it was the normal, accepted standard of living for many people at the time of the ratification.

    “New phenomena arise that can still be categorized under existing headings.” But in doing so, you change the definition of those headings. Not infinitely, of course – the basic principles must remain – but the application of those principles changes based on the realities to which they are being applied.

  16. On the contrary, I see things exactly as they are.

    there is the core delusion. no one does.

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