Supreme Court Case

MARIJUANA USE ISN'T COMMERCE

Hard cases make bad law, the old adage goes. But in the case of
Ashcroft v. Raich, the medical marijuana case recently argued before
the U.S. Supreme Court, the opposite may turn out to be true: A hard
case may lead to a revival of a key principle of constitutional
government: Congress has only limited powers over the states.

Angel Raich's case is certainly a hard one, at least if you believe
her account. Smoking marijuana keeps her alive and able to care for
her daughter. Without it she couldn't eat or get out of a wheelchair,
the pain and nausea of her brain tumor and other illnesses were so
bad. Medical authorities may dispute her claim, but in law, the case
turns on an entirely different question: Not whether medical marijuana
is effective or not, but whether growing marijuana in your own home
for your own medical use constitutes "interstate commerce."

Do federal laws banning marijuana usurp California's state law
permitting homegrown medical marijuana?

The glitch is a 1942 case, Wickard v. Filburn, in which a federal law
limiting wheat production was held up, banning Roscoe Filburn from
growing and using wheat on his own farm, on the grounds that if you
added up all the wheat grown and consumed on family farms, it might
have an indirect effect on interstate commerce (i.e., the wheat that
might have been sold across state lines if they hadn't grown and
consumed their own wheat). So expansive was this reading that for 30
years, any law passed by Congress was held to automatically qualify as
"interstate commerce" because just about any act could potentially
affect commerce, however indirectly.

Which is why Justice David Souter in the oral arguments focused on the
potential volume of marijuana that could be grown and consumed by sick
people in California. (I've condensed the argument from legal scholar
Lawrence Solum's report on his legal theory blog: www.lsolum.blogspot.com
)

Souter is questioning Raich's lawyer, Randy Barnett:

Souter: "Suppose that 100,000 people are in chemotherapy in California.
Then couldn't there be 100,000 users of medical marijuana?"

Barnett: "There could be. ... Wickard v. Filburn's aggregation principle
does not apply if the activity involved is noneconomic."

Souter: "But isn't it economic activity if it has a sizable effect on the
market?"

Barnett: "No. The effect on the market is only relevant if it is market
activity. ... The point is that economic activity and personal liberty are
two different categories."

Souter: "That is not a very realistic premise."

Barnett: "The premise is that it is possible to differentiate economic
activity from personal activity. Prostitution is economic activity, and
there may be some cross substitution effects between prostitution and sex
within marriage, but that does not make sex within marriage economic
activity. You look at the nature of the activity to determine whether or
not it is economic."

Barnett is right, of course: Sex within marriage is not economic
activity, and therefore regulating it is not regulating "interstate
commerce" even though marital sexual activity may affect say, the
purchase of lingerie, sheets or even prostitutes.

So is growing marijuana in your own home for your own medical
consumption "interstate commerce," as the government alleges?

I think the answer is clear: No. Therefore Congress has no power to
restrict Raich's personal consumption activity, no matter how much you
or I or a majority of voters disapprove off the California law that
permits it.