A Constitutional Case for Medical Marijuana

November 30, 2004

Maggie Gallagher, Columnist, Yahoo News

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 (and her doctor has made medical marijuana consultations a suspiciously large part of his practice), 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 Mr. 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). By this tortuous logic, the Supreme Court transferred to Congress the right to tell a farmer what he could grow and eat on his own property. 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 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.) Justice Souter is questioning Ms. Raich's lawyer, Randy Barnett:

Justice 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.

Justice 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.

Justice 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, it isn't. Therefore Congress has no power to restrict Ms. 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.

As conservatives control national government, liberals (including those on the Supreme Court) may in general acquire a newfound respect for the virtues of at least some constitutional restrictions on the power of the federal government. Perhaps.

(Readers may reach Maggie Gallagher at MaggieBox2004@yahoo.com.)

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