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January 11, 2018

Marijuana and the Constitution

It took the 19th amendment to the US Constitution to ban most manufacture, transport, and sale of alcoholic beverage in the United States. Why then was Congress able to ban marijuana and a host of other substances by simply passing a law? Good question and one worth addressing when this congressional prohibition is at odds with what most American apparently want and actions taken by the states. The question of congressional power is especially worth examining given a dysfunctional Congress which complains about enforcement of its own law but seems incapable of the simple act of amendment.

Section 8 of Article 1 of the US Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Clearly that gives Congress the power to regulate interstate sale of marijuana and its importation. Article X of the bill of rights says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” For most of American history, these two clauses were read together to reserve the power to regulate intrastate commerce to the states. That’s why it took a constitutional amendment to impose prohibition.

In 1942 a Supreme Court decision Wickard v Filburn essentially took the words “between the states” out of the commerce clause.  From Wikipedia:

“An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to stabilize wheat prices and supplies. Filburn grew more than the limits he was permitted and was ordered to pay a penalty. In response, he said that his wheat was not sold, so his activity could not be regulated as commerce, let alone "interstate" commerce…

“The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the scope of the Commerce Clause. Although Filburn's relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn's production could be regulated by the federal government.”

The background of this ruling is that in 1942 eight of the nine justices had been appointed by President Roosevelt, the architect of the law being challenged – as good a reason as any for term limits. The US was also at war and draconian regulation of all kind was tolerated.

Fast forward to 2003 and Gonzales v Raich, a case challenging the federal government’s right to prosecute the instate use of medicinal marijuana in California where a referendum had legalized such use. Relying heavily on the Wickard v Filburn decision, the Supreme Court ruled 6-3 that the feds did have this right because the intrastate use of marijuana might interfere with interstate commerce in pot (even though such commerce was illegal).

Justice Thomas wrote in dissent:

“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

It's not a good idea for the federal government to have unlimited powers even if it weren’t dysfunctional.

Justice O’Conner wrote in her dissent:

“Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

I think she is right. People the world over are resentful of over-reaching central authority (see Brexit, Catalonian separatists, Iranian demonstrators, and the election of Donald Trump for just a few examples). We in the United States are fortunate that the states and the US Constitution are a mechanism for resumed local control. We don’t need a revolution to ratchet back central power, just a return to federalism as it was practiced for most of our history. Invalidating federal control over instate drug use and sale will not make all drugs legal everywhere any more than the end of prohibition made alcohol legal everywhere. Control will just go back to the states and localities – and the feds will still be free to combat international smuggling or even interstate drug commerce.

 The Court is reluctant to reverse prior decisions but has done so. Brown v Topeka, which outlawed segregated public schools, expressly undid Plessy v. Ferguson, which held that separate but equal is good enough.  I hope the Court will give itself the opportunity to reverse the overreach of both Wickard v Filburn and Gonzales v Raich. 

Meanwhile, Congress should stop blowing smoke and promptly undo its own unwise listing of marijuana on the same schedule as heroin in the possibly unconstitutional Controlled Substances Act. See Marijuana and Congress for more on that.

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