June 07, 2005

Court Rules Against Raich; New Federalism Dead

In the case Gonzales v. Raich, formerly known as Ashcroft v. Raich, the Supreme Court found for the government 6-3. Stevens wrote the opinion with Souter, Ginsburg, and Breyer predictably joining. Kennedy, unfortunately, signed on as well. Scalia, also unfortunately, sided with the government in a separate concurrence. O'Connor, actually, wrote the dissent, and was joined by Rehnquist and Thomas, who wrote a separate dissent.

The earlier New Federalism cases, US v. Lopez and US v. Morrison, finally found limits to the Commerce Clause - the first time the Court did so since the 1930s. Lopez found that federal criminalization of gun possession near schools did not substantially affect interstate commerce, being non-commercial and intra-state. Morrison found that the Violence Against Women Act of 1994 primarily dealt with non-commercial, intra-state activity (and they also found the Fourteenth Amendment and Equal Protection Clause arguments not compelling). So in other words, the commerce clause must apply to something that's either interstate and commercial or to something that substantially affects interstate commerce.

Brandishing a gun fifty feet from a junior high doesn't substantially affect interstate commerce. Two football players raping a woman doesn't substantially affect interstate commerce (brutish and evil though it is). But then, one woman growing a couple marijuana plants to give to her cancer patient friend is non-commercial and intrastate and doesn't substantially affect interstate commerce. It was only when viewed in the wider sense, as a systemic problem, that it could really be seen as substantially affecting interstate commerce. That some trend the Court didn't consider elsewhere.

The Court didn't consider what would happen if there were a million school-proximity shootings a year and the effects on interstate commerce. The Court didn't consider what would happen if tons if rapes were to go unpunished or under-punished. Yet the Court did seem very concerned that hundreds of thousands or millions of Californians would take advantage of the medical marijuana law and thus take themselves out of the wider illegal market for marijuana.

In other words, they brought back Wickard v. Filburn, an egregiously STUPID 1942 case where farmer Filburn was found to be substantially affecting interstate commerce by growing wheat that he ate and that never left his farm - thus allowing the Congress to regulate it under the Agricultural Adjustment Act.

Lopez and Morrison are essentially meaningless, or at least the line between Lopez/Morrison and Raich/Wickard is horribly muddled. The Congress, as Souter's dissent to Morrison noted, had tons of hearings detailing the allegedly widespread effects of violence against women - dramatic abuse statistics, heavy impact of female and child homelessness, injury and medical assistance. There's arguably a very strong case, assuming the testimony in the hearings is valid (it isn't necessarily valid, since people have been known to embellish the harms of popular evils), that violence against women has a substantial effect on interstate commerce, especially with regard to health care and homelessness. Yet the court did not find this compelling. Breyer's dissent to Lopez detailed a relatively ambitious line of argumentation alleging a large role for gun violence in harming education and for education's critical role in the economy and interstate commerce. The court's majority disagreed.

They found the aggregate effects of non-commercial intra-state activity substantially affecting interstate commerce when it's medical marijuana affecting the drug war, yet could not see the same for school-proximate gun violence or violence against women. The precedent is even more muddled because the drug war was allowed to be defined as 'interstate commerce' even though it's not clear that organized crime was supposed to be covered by that clause. Here's my take on the case.

1) The Commerce Clause doesn't apply.
a) The activity in question has no substantial effect on interstate commerce. Non-commercial, home-based, intra-state activity does not have a substantial effect on interstate commerce.
b) Lopez and Morrison were correct in proscribing the Commerce Clause. In fact, they didn't go far enough. While the Rehnquist court prior to Raich held that the commerce clause deals with either the instrumentalities of interstate commerce or activities that substantially affect interstate commerce, I would take a direct interpretation: only commercial activities that cross state borders (or with foreign countries or with Indian tribes) are covered. I would not include something like a Vermonter going to NH to buy sales tax-free items, since that's intra-state commerce. If the business in NH makes a purchase from a business in VT or a Vermonter makes an order for a cross-border shipment of an order, that qualifies as interstate commerce. The general idea is that it must be a commercial activity that falls under the jurisdiction of two or more states. The Congress is meant to set the rules and basic framework for the states to have harmonious, impartial and open commercial interaction.
c) It's not clear to me that illegal interstate commercial activities were meant to be covered alone by the commerce clause. I don't know the line with regard to illegality, but it seems shaky to say that the American marijuana black market falls under the constitutional definition of 'interstate commerce.'

2) The drug war itself is not constitutional and requires a reproduction of the 18th Amendment to continue. In order to make the Volstead Act constitutionally permissible, the Congress had to pass the 18th Amendment for alcohol prohibition. It's silly to say that drug prohibition doesn't require the same hurdle.

3) The liberty interest under the 9th Amendment, as well as the 5th and 14th Amendments, prohibits any level of government from infringing on the choice to consume or not consume medical marijuana or non-medical marjiana. This is a private action that doesn't harm others, doesn't involve coercion or fraud, and is one of the unenumerated rights covered by the Ninth Amendment. Therefore, the liberty interest of the Ninth protects the right to smoke medical pot no less as strongly as the First Amendment protects free speech. That's the promise of the Ninth Amendment. All our rights, big or small, enumerated or unenumerated, are protected in the Bill of Rights. The only way an unenumerated right can legitimately go away is if a new amendment to the Constitution, like the 16th or 18th, were to take it away. My assertion is not that the founders meant to explicitly protect the usage of marijuana, but that the unenumerated rights are actually unenumerable - they cover any of the free activities that don't harm or defraud others, and are known as our natural rights. The Founders knew them by this name and by a similar (though more vague) definition. The entire point of the Ninth Amendment is that not listing rights doesn't weaken them or mean the government can abuse them.

Obviously nobody on the Court is going to take this position any time soon, but I'm confident it's the correct one. Just to repeat my disclaimer, I'm not a lawyer (which ought to be clear to lawyers) so don't take me for one.

In the sense of precedent, Gonzales v. Raich seriously weakens the Lopez-Morrison line. Not only did Stevens reinvigorate Wickard, but the decision accepts an almost infinitely broad interpretation of the Commerce Clause. It's no longer clear just how far an activity has to be from interstate commerce, since one can use entirely intrastate products and services to create a non-commercial product and be accused of affecting interstate commerce. Lopez and Morrison are still there, but they weren't doing so well with the lower courts anyway and Gonzales v. Raich gives them way more room to abuse the idea of New Federalism.

I always find it interesting that the Court can find a broad right to be free from "undue burden" on the right to terminate a child before it's born, yet there's no attention at all paid to the idea of privacy, substantive due process or a liberty interest when it comes to smoking marijuana in your own home. You have the 'right to control your body' except when it comes to controlling the chemicals put in your body and as long as 'your body' only ever means 'your unborn child's body.' Yeah, that makes a lot of sense. I'm glad to see that they managed to create a liberty interest (called 'privacy' with a straight face) so narrow that it's overwhelmingly strong enough to beat back all but the weakest regulatory limits and get 40 million people killed but not strong enough to even let states choose to let cancer patients light up to fight back the pain. Why does privacy only work to end lives and not to save them or improve them?

It boggles the mind.

Either way, ideally some case will come soon that will let Kennedy and Scalia return to the Federalism Five and try to salvage something from Lopez and Morrison.

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