In its recent decision upholding the federal government's authority to pluck marijuana from the hands of desperately ill people who use it as a medicine, the U.S. Supreme Court noted in passing that "most domestic drug regulations prior to 1970 generally came in the guise of revenue laws." That's a puzzling fact if, as the Court now insists, the power to "regulate Commerce…among the several States" includes the power to ban certain plants and their products from backyards and dresser drawers throughout the nation.
As the Court explained, the Marihuana Tax Act of 1937 "did not outlaw the possession or sale of marijuana outright." Instead it imposed tax, registration, and reporting requirements that made legal possession of the drug prohibitively expensive and burdensome. Members of Congress would not have taken this complex, indirect approach (aspects of which ultimately were ruled unconstitutional) if they thought they could get away with a straightforward ban simply by citing the Commerce Clause.
The fact that Congress felt it had to disguise its first marijuana law as a tax measure suggests how far we have traveled since the 1930s from the plain meaning of the Commerce Clause, which has been transformed into an all-purpose excuse for federal meddling. As a result, individuals oppressed by an overbearing national government cannot realistically expect Congress to explain how its actions are authorized by the Constitution. Instead they must search for a constitutional provision that protects the specific freedom they wish to exercise—precisely the situation the Framers sought to avoid by creating a federal government of limited and enumerated powers.
In the medical marijuana case, two California women, Angel McClary Raich and Diane Monson, noted that their use of homegrown cannabis to treat the pain and nausea caused by various debilitating conditions, as recommended by their doctors and permitted by state law, was neither "interstate" nor "commerce." Hence banning it could not reasonably be considered regulation of interstate commerce.
The U.S. Court of Appeals for the 9th Circuit agreed, but the Supreme Court did not. Now Raich and Monson must return to the 9th Circuit, where they can argue that the doctrine of medical necessity should protect them from prosecution and that federal threats to seize their marijuana and arrest them violate their Fifth Amendment rights to due process.
In addition to shifting the burden of justification from the government to the individual, the Supreme Court's expansive reading of the Commerce Clause shifts the balance of power between the federal government and the states. As Justice Sandra Day O'Connor noted in her dissent, California's decision to allow the medical use of marijuana is a clear example of the policy experimentation federalism is supposed to allow.
"If Congress can regulate [homegrown medical marijuana] under the Commerce Clause," Justice Clarence Thomas wrote in a separate dissent, "it can regulate virtually anything." According to the majority's reasoning, Thomas and O'Connor noted, such local, noncommercial activities as quilting bees, clothing drives, potluck suppers, windowsill gardening, and child care could be subject to federal regulation.
Antonin Scalia and Anthony Kennedy, two justices who in the past have opposed an infinitely elastic Commerce Clause, went along with the majority's absurdly broad interpretation, apparently because they felt constrained by bad precedents and bad laws they were not prepared to overturn. If, as the Court held in 1942, preventing a farmer from growing wheat for his own consumption can be a legitimate part of a broader regulatory scheme aimed at controlling interstate commerce in wheat, it would seem that preventing a woman from growing marijuana for her own consumption is a legitimate part of a broader regulatory scheme aimed at controlling interstate commerce in marijuana.
The majority correctly worried that to rule otherwise would jeopardize the Controlled Substances Act, since a similar logic would apply to local production and possession of marijuana (and other drugs) for recreational use. As Thomas noted, "No evidence from the founding suggests that 'commerce' included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."
To ban marijuana, Congress should have amended the Constitution through the arduous process prescribed by the Framers, just as it did when it banned alcohol. Instead it has amended the Constitution through legislative assertion and judicial acquiescence.