Federal power daze

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The chief author of our Constitution, James Madison, had little patience for those who accused him and his allies of trying to create a large, intrusive federal government.

In 1788, he noted pointedly the “powers delegated by the proposed Constitution to the federal government are few and defined.” Those of the states, by contrast, “are numerous and indefinite.” Last week, addressing the same question, the Supreme Court said, “James who?”

In recent years, the justices had flirted with restoring to the states some authority they once exercised. After the court’s half-century love affair with centralization, that came as a shock to almost everyone. But the new romance didn’t last.

The court’s decision to uphold the federal ban on medical marijuana is a victory for those who think the federal government should be free to poke its snout anywhere it wants — an approach, conservatives should note, consistently favored by the Bush administration. In this instance, that policy means punishing seriously ill people whose doctors have recommended the therapeutic use of marijuana in compliance with California state regulations.

Under California law, patients may obtain and use marijuana under a physician’s suggestion. But that didn’t stop federal drug agents from going after Diane Monson. They confiscated six cannabis plants she had grown to treat the intense pain caused by her spinal disease.

She, however, was seized by the idea California law should count for something in California. Ms. Monson and a fellow patient filed a lawsuit arguing that their pot use was purely a state matter, beyond federal reach.

For a long time, that sort of claim was routinely laughed out of court. Starting in the 1930s, the court waved through a long parade of federal laws and regulations going well beyond what was allowed before. The federal government was now free to intrude into all sorts of spheres, the court explained, because of its power to regulate interstate commerce.

It devised this theory mainly because it wanted a way to sanction Franklin D. Roosevelt’s New Deal — not because it had any legal basis. The constitutional power to regulate interstate commerce, when written, had a far more modest purpose.

Under the Articles of Confederation, states could erect trade barriers to protect home industries from competitors in other states, to the detriment of national prosperity. So when the time came to draft a new Constitution, the delegates wanted a national free-trade zone. Hence they gave Congress authority to “regulate commerce … among the several states.”

That’s “among,” not “within.” Clearly the feds had some latitude to address economic matters that affected two or more states, but not to police commercial activity confined to a single state.

And in 1995, the Supreme Court revived the concept that the ambit of the federal government is one of “enumerated powers” — meaning those powers specifically granted by the Constitution. The commerce clause, it said, is not a blank check for Washington to meddle in local matters.

So Ms. Monson should have won her case in a walk. The marijuana she used was not part of interstate commerce. In the first place, it was never any kind of commerce: She grew it herself. In addition, it never left her home state. No one in Nevada or Arizona smelled the smoke or enjoyed the high.

Yet this Supreme Court managed to find excuses to rule against her. Justice John Paul Stevens, quoting from a 1942 decision, insisted that, even if an activity “is local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

Oh? The Constitution empowers Congress to regulate interstate commerce — not anything affecting interstate commerce. Still, it’s absurd to think Ms. Monson’s six plants could have the least effect on the national marijuana market.

So the court was driven to say Congress not only has the power to regulate anything that might affect interstate commerce, it has the power to regulate anything that might affect anything that might affect interstate commerce. As dissenting Justice Clarence Thomas warned, “If the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states.”

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