Posted on 12/17/2004 9:12:14 AM PST by inquest
Ashcroft v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in.
The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with an awful array of diseases, including tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was again able to walk.
Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal.
But under the federal Controlled Substances Act of 1970, the possession of marijuana for any reason is illegal. The question for the court is which law should prevail in this case: state or federal?
Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Does Congress have the right to criminalize the possession of minuscule amounts of marijuana, not bought on the illicit drug market, and used as medicine?
Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need?
According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses.
The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, for his family, some he fed to his livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it?
But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority.
Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, in fact, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana.
But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says."
Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then it says Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study.
No, no, no. This makes absolutely no sense.
Either the pain is so severe that it requires a drug like Oxycontin or it isn't. If a person can somehow get by on other pain relieving drugs instead of taking a highly addictive drug like OxyContin, why wouldn't they choose that option? Why take the chance of addiction?
There's probably 100 pain killing drugs in the spectrum ranging from aspirin to Oxycontin -- there is no reason for her to smoke marijuana at the lower end of the pain relief scale and still suffer.
Look, believe what you will. But I ain't buyin' it. Sorry.
Yes, and all of those would be analogous to Hamilton's example.
"I bought a box of dehydrated water once and it said to just add water"
-- Steven Wright
I believe you're saying that a 1-8-3 power is Congress using the power of the commerce clause to write some piece of legislation regulating intrastate commerce. Yes? No?
"Notice the SC reasons that if wheat producing farmers themselves were to not buy wheat, it would affect the national wheat market."
Yes. Each farmer had a quota. That quota assumed the farmer would buy his wheat on the open market.
I suppose the legislation could have been written differently, setting a smaller "to market" quota with an unlimited "for personal use" amount. But what about those farmers who had no use or desire for wheat? They wanted to grow and sell as much as they could.
The logic of the USSC in Wickard v Filburn makes perfect sense to those who look at the complete picture.
Those, like you, who choose to think of this case as 239 bushels will never understand.
Oh, by the way, our Mr. Filburn (who was being paid three times the world price per bushel for his wheat by the federal government) was allowed to produce and consume wheat in excess of his quota. He simply had to pay a small per-bushel penalty.
Oh please.
You throw the statement out there like it's so obvious that the federal government banning certain firearms is analogous to the federal government restricting the power of state governments to tax.
Nope. You're gonna need more than a flippant response to convince me.
Stop right there.
IF the individual states erected some barrier to interstate trade, Congress was given the power under the Commerce Clause to remove that barrier. That was the original intent of the Commerce Clause. To "regulate" commerce. I'm sure we both agree on that part.
Now you're making a different argument that "to regulate" does not include "to prohibit". I disagree, provided that Congress prohibits among all the states equally.
Again, I go back to that 1808 case, United States v. The William, 28 Fed. Cas. 614, no. 16,700 D.Mass. which said that the power to regulate commerce is not limited to simply encouraging it:
"Further, the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest."
"The mode of its management is a consideration of great delicacy and importance; but, the national right, or power, under the constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to me unquestionable."
1808.
In U.S. v. DARBY 312 U.S. 100 (1941), the USSC stated:
"The power to regulate commerce is the power 'to prescribe the rule by which commerce is to be governed'. It extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it...."
Granted, Congress may not have intially used the Commerce Clause to prohibit commerce -- but that doesn't mean that the power wasn't there all along.
Here's an excellent link (yet another robertpaulsen home run) which should put this issue to rest.
"So if I understand you correctly, you're saying that although it wasn't part of the original intent for Congress to regulate commerce among the several states for the positive purposes of the country, Congress nevertheless has that power."
No. I'm saying that Madison's second letter opens the door to using the Commerce Clause in that manner.
If, according to Madison's second letter, it is constitutional for Congress to regulate commerce with foreign nations for the positive purposes of the country, then I'm saying it's constitutional for Congress to regulate commerce among the several states for the positive purposes of the country.
"But there's still nothing in the letter that shows his concerns to be that Congress might unjustly discriminate against one state."
Sure there is. If I say to you that "to regulate commerce with foreign nations" includes the power to place that foreign commerce at a disadvantage for the good of our country, then what are you to conclude if I were to extend that same power "to regulate commerce among the states"?
As Madison says, if taken literally, that power would allow Congress to place one state's commerce at a disadvantage for the good of our country. His second letter says, "Don't do that". His second letter reminds Cavel of the original intent of the Commerce Clause -- to remove barriers to injustice.
I never did answer your question.
Yes, if the pain medication is approved by the FDA for use by children, if it is prescribed by a licensed physician, obtained through a licensed pharmacy, and administered by a healthcare professional (or responsible adult).
Californis Proposition 215 allows an adult "patient" to smoke medical marijuana when provided merely with a recommendation from a doctor. I am asking you if you believe this wondrous medicine should be available in this manner to California children of all ages?
Do you also give equal consideration to the observation that the commerce power invariably embraces the object of encouraging manufactures?
Of course. But that is not the sole power of the commerce clause.
Did you read the link in my post #267?
You're still failing to distinguish between interstate commerce and foreign commerce.
"So if I understand you correctly, you're saying that although it wasn't part of the original intent for Congress to regulate commerce among the several states for the positive purposes of the country, Congress nevertheless has that power."
No. I'm saying that Madison's second letter opens the door to using the Commerce Clause in that manner.
If Madison hadn't written that second letter, then the door might have been opened to using the commerce clause in that manner. But he was clearly saying that the original intent for the power over interstate commerce was not "for the positive purposes of the General Government". It certainly doesn't "open the door" to the contrary conclusion.
If I say to you that "to regulate commerce with foreign nations" includes the power to place that foreign commerce at a disadvantage for the good of our country...
But that's not the only thing Madison said about the commerce clause in his first letter. He said, much more broadly, that regulating commerce means promoting manufactures. It's that broad reading that he was alluding to in his second letter, when he said it should not be applied to the power over interstate commerce. You're trying to cherry-pick and limit what he said, when in fact he himself was clearly indicating that the original intent for the "negative", "remedial" power over interstate commerce was to deal with abuses of power by state governments, and not to promote the positive purposes of the federal government.
What other power does it have? The letter states that the power is as it was understood by the people who transferred it, at the time the transfer was made. According to Madison, this is the only power known to them at that time.
Moreover, you arguing that the implications of Madison's arguments are that Congress can regulate interstate commerce "for the positive purposes of the country". Madison explicity says the Commerce Clause was not intended for the positive purposes of the national government. You are arguing that the positive purposes of the national government are not the positive purposes of the nation. Care to explain what the difference is?
It may restrict commerce. It may prohibit commerce.
"for the positive purposes of the country" = "for the positive purposes of the nation" = "for the positive purposes of the national government". I equate all three.
1-8-3 doesn't. Why should I?
"But he was clearly saying that the original intent for the power over interstate commerce was not "for the positive purposes of the General Government"."
Yes. So? He didn't say that it couldn't be used that way.
The "original intent" of a hammer is to pound nails. Does that mean that it cannot be used to drive a wooden stake into the ground or remove a rusty muffler? C'mon.
Madison already admitted (in the first letter) that the commerce clause could be used over foreign commerce "for the positive purposes of the General Government". I fail to see why it cannot be used over interstate commerce "for the positive purposes of the General Government".
Why are you making a distinction between interstate commerce and foreign commerce?
"He said, much more broadly, that regulating commerce means promoting manufactures."
Yes. He said that, in his opinion, the commerce clause allows regulating foreign commerce as a means of promoting local manufactures.
He admits that wasnt the original intent of the commerce clause, but it could be used that way.
You're trying to say that the original intent precludes it being used any other way. Well, Madison already said it could be used negatively against foreign trade, didn't he? As I said, that opens the door. You're trying to reword the Commerce Clause to read:
"To regulate Commerce with foreign Nations, and to encourage commerce among the several States, and with the Indian Tribes;"
That is not what it says. It says "regulate" once. And regulate means encourage, restrict, or prohibit, and it applies to foreign Nations (as Madison admitted), to commerce among the several states, and to commerce with the Indian Tribes.
"for the positive purposes of the country" = "for the positive purposes of the nation" = "for the positive purposes of the national government". I equate all three.
Then you are directly contradicting Madison's arguments in the letter you've based your argument on. Sophistry always collapses under critical analysis.
Is this your way of saying you consider "original intent" irrelevant?
In what way?
The Commerce Clause cannot simultanously be used for the positive purposes of the nation and not be used for the positive purposes of the national government if the two are interchangeable. Your conslusions are contradictory based on your source.
It depends on how literal you mean to be.
If you believe the original intent of freedom of the press meant the freedom of newspapers, then the original intent is certainly irrelevant, isn't it? Or not?
I mean, it says "the press", not "the media" or "the fourth estate". So maybe you think the original intent of the Founding Fathers, newspapers, is the only medium to which the first amendment applies? You would.
The original intent is only relevant if it was meant to preclude any other interpretation. The phrase "shall not be infringed" is a good example.
But in this case, here we have Madison himself saying, "Yes, you may use the commerce clause that way, even though that's not what we originally intended."
Based on that, how can you conclude that the "original intent" is relevant? In this case, it's not.
No, what we have is you interpreting Madison to be saying that.
A claw hammer was intended to pound and pull nails. Some people will use it for things it was not intended to be used for, and others will not. The difference basically comes down to a respect for the tool. You are advocating a philosophy that says no such respect is due the Constitution.
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