Third Party & Independents Archives

Medicinal Marijuana and the End of a Limited Government

A couple of weeks ago, the Supreme Court heard oral arguments in Ashcroft v. Raich, a case about a woman who used home-grown medicinal marijuana to reduce the pain from an inoperable brain tumor. Her actions were legal under California law, and she sued to enjoin the federal government from using its power under the Controlled Substances Act to take away her medication. The most important question in this case is not rights to medication, but the proper scope of our federal government.

A little historical background will help put this case into context. The constitution created a national government of limited means- limited to the enumerated powers listed in Article I, Section 8 (and augment by subsequent amendments). Until the 1930s, the power of the federal government power was relatively confined to these enumerated powers, and some arguably logical extensions. Then Supreme Court, under political pressure from Franklin Roosevelt, reversed its rulings and gave the federal government power to regulate anything under the interstate commerce clause. Perhaps the most egregious case in this era was Wickard v. Filburn, where the Court accepted that an individual farmer growing food for himself and his farm significantly affected interstate commerce and thus could be forced to comply with federal law. This trend of using the commerce power to accomplish any ends the federal government wanted continued throughout the rest of the century, as the Court accepted civil rights legislation (Katzenbach v. McClung), environmental legislation and just about every other kind of law as a proper exercise of the power over commerce. In short, the commerce clause power became a blank check for Congress.

But in 1995, the Supreme Court decided U.S. v. Lopez, declaring that the power over interstate commerce did not allow Congress to ban guns from school zones (in a mind-boggling dissent, the 4 liberal justices actually argued that the commerce clause power was sufficient to uphold this law). In the most important post-Lopez case, U.S. v. Morrison, the Supreme Court struck down the Violence Against Women Act as exceeding Congress' commerce clause power (again with the four liberal justices arguing that fighting domestic violence was within the commerce clause!). These two cases ushered in the so-called federalism revolution in which the Supreme Court was supposed to take a harder look at legislation to ensure compliance with the constitution.

In Ashcroft v. Raich, the government argued that it had the power to stop Ms. Raich from taking medical marijuana as part of its national effort against drug use. It argued that her private activity of growing medicine for herself affected the market for marijuana, and this effect justified the federal government using its commerce power to stop her. Notice that under this argument virtually anything can affect interstate commerce because almost every private action has some impact on the price of some good. There are many more intricate arguments you can read about during the oral arguments, but they all come down to one simple question- does the power: to regulate Commerce...among the several States: really mean it can stop an individual from growing a substance for their own use within their own home?

The answer to this question may decide if the federalism revolution is meaningful, or just a small hiccup in the ever-extending power of the national government over our lives. If the experts are correct, and the Supreme Court rules that the federal government has the power to stop an individual from using medicinal marijuana that she grows for herself, the impact of Lopez and Morrison will be severely limited. The decision will also show the true colors of the justices. Do Justices Thomas, Scalia, Rehnquist, Kennedy and OConnor really take the concept of federalism seriously, or will they allow their preference against drugs to guide their decision at the expense of our constitution? Are justices Breyer, Ginsburg, Stevens and Souter so committed to the idea that our national government has absolutely no internal limits on its power that they are willing to allow this woman to have her pain-relieving medication taken from her by the federal authorities?

The import of this issue was summarized by Professor Jonathan Adler:


Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.

Our framers believed that the scope of the government they created would be limited and defined. If they could see the way liberal judges (now conservatives too) have stretched the simple words: to regulate Commerce... among the several States: they would be confused and shocked. More importantly, they would see it as the end of the system of enumerated powers that they set up. Many nations have a national government with general police powers in all areas of life- America does not. But if the Court says that power over interstate commerce is so broad that it is basically a general police power, then the central object of our constitution has come to end.

Posted by Misha Tseytlin at December 19, 2004 10:09 PM