States' rights, not marijuana, key in ruling

June 09, 2005

EDITORIAL, Times and Democrat (SC)

THE ISSUE: The medical marijuana ruling

OUR OPINION: Court has decided no limits on federal regulation of intrastate commerce

The U.S. Supreme Court's opinion Monday in Raich vs. Ashcroft has implications beyond its role in the medical marijuana debate. The court stated that Congress, in regulating a commodity market that crosses state lines, may regulate activity relevant to that market that takes place wholly within one state.

According to the court, individuals who grow marijuana for their own personal use affect the interstate market for marijuana because they remove themselves as buyers and affect the interstate demand for the drug. While some may view the litigation in the Raich case as nothing more than the repudiation of free-spirits from California whose aim was to inspire a lax drug policy across the nation, the implications from Raich strike at the core of states' rights in our federal system.

One of the nation's building blocks was the belief that the federal government was created to be one of limited powers, with most regulation reserved to the states. The Constitution itself enumerated the powers Congress and the federal government possessed. One was the power to regulate commerce 'among the several states.' Over time, Congress' use of the 'Commerce Power' has broadened, and today, most regulation occurs at the federal, not state, level.

The theory of governance tacitly approved in the Raich case, however, goes beyond mere federal regulation of goods crossing state lines. As implausible as this may sound, after Raich, Congress has the power to bar individuals from growing their own fruits and vegetables in backyard gardens. Congress' commerce power undoubtedly extends to permit regulation of the interstate orange market. Thus, under Raich, Congress may prohibit individuals from growing their own oranges. Such individuals may have a substantial effect on interstate commerce because, by producing their own oranges instead of purchasing those moving in the interstate market, they have removed themselves as buyers in that market. That alters the demand for oranges.

States' rights is sometimes called a tired Southern refrain, but our founders knew leaving power with the states helps promote democracy. At the state and local levels, individuals have a greater ability to become involved. Ironically, in this day and age of increasing federal power under a Republican administration, states' rights is being used more and more as a rally cry for environmentalists, medical marijuana users, and other so-called 'liberal' interest groups who find more attentive ears in state capitals than they do on Capitol Hill. Republicans, who swept to power in 1994 partially by adopting the mantra that 'less is more' with the federal government, have now embraced the power of big government themselves. Raich is perhaps a reflection of this political trend; a recognition by the court that congressmen on both sides of the aisle have abandoned the concept of decentralized power.

Whatever the cause, the result is that the Supreme Court seemingly no longer sees any meaningful limitation on the power of Congress to regulate intrastate activity. Once upon a time, limited federal regulation was thought beneficial so that, in the words of late Justice Louis Dembitz Brandeis, 'a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.' In order to serve as a laboratory today, a state must indeed be courageous — courageous enough to believe the federal government will not end a worthwhile experiment before it begins.

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