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Last week, the U.S. Supreme Court ruled 6-3 against
state medical marijuana laws, including Colorado's. The
court's ruling was based on the Commerce Clause of the U.S.
Constitution, which states that The Congress shall have
power ... To regulate Commerce with foreign Nations, and
among the several States ...
But how does someone growing a plant at home for
personal use become a form of commerce among the several
states
? Nothing crossed a state line, nor did money
change hands. It appears to be neither commerce nor
interstate, so where does Congress get such authority?
This stretching of the Commerce Clause goes back to a 1942 case, Wickard v. Filburn. Wickard was the U.S. Secretary of Agriculture, and Filburn farmed in Ohio.
Under New Deal agricultural policy designed to limit production and improve farm prices, Filburn could grow only a certain quota of wheat. He exceeded that quota, but instead of selling the wheat, he fed it to his own chickens. He was penalized, and he appealed the penalty partly on the grounds that no interstate commerce was involved -- the wheat and chickens had never left his own property, let alone the state of Ohio -- so the federal Agricultural Adjustment Act did not apply.
The Supreme Court held that because Filburn's use of his own wheat to feed his own chickens could affect interstate commerce -- he might have had to buy chicken feed from Kentucky if he hadn't grown his own in Ohio -- then Congress had the power to regulate it.
In general, the Supreme Court has since upheld almost any federal law based, however loosely, on the Commerce Clause. This Court made two exceptions. In 1995 it struck down the Gun-Free School Zones Act because gun possession near a school is not an economic activity. On similar grounds, in 2000 it found against the Violence Against Women Act.
So when the medical marijuana case reached the Supreme Court, it seemed reasonable to expect that this court would rule that growing your own medicine is not an interstate economic activity, and therefore beyond the power of Congress.
But if you think about this, it becomes apparent that this affects a vital element of interstate commerce. You're in pain, you grow some medicine and take it, then you go about your life as productively as possible.
And in that process, you do not buy anything from the immense pharmaceutical industry. That is, the industry that in 1999-2000 (the last years I could find numbers for) spent more on lobbying and other political persuasion than any other industry: $262 million, with $177 million going to 625 lobbyists (more than one for every member of Congress), $65 million for issue ads, and $20 million for campaign contributions.
That's certainly interstate commerce, and imagine the dire economic consequences for congressional campaigns if Americans quit feeding the corporate pharmaceutical cash machine, and started tending to themselves with home-grown remedies.
And now that it's totally empowered by the Supreme Court, our Congress can find new ways to insure that we perform our economic duties.
While it may be legal now to generate your own electricity with a solar panel, Congress now has the power to outlaw that, since you might have otherwise bought the electricity from a mercury-spewing plant in Arizona, and thus you're part of interstate commerce without ever leaving your own yard.
Growing your own vegetables obviously affects thecommerce of those agribusiness campaign contributors in California and Illinois. Compile your own computer's operating system, and you're affecting the interstate commerce of the Microsoft monopoly. Walking or bicycling to work instead of driving affects the income of multi-national oil companies, and is thus a matter of interstate commerce. So is making your own clothes, burning your own firewood, or just about any other act of traditional American self-reliance.
Thus the medical marijuana decision gives Congress the
chance to pass scores of new laws for the benefit of
campaign contributors, if not the rest of us, all under the
guise of regulating commerce between the states. As Justice
Clarence Thomas put it in his dissent, If Congress can
regulate this under the Commerce Clause, then it can
regulate virtually anything.
Given the tendency for this Congress to bend over for anyone with a bankroll, it's safe to predict that we will see it try to regulate anything we use that might interfere with corporate profits, from sewing machines to solar cells.
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