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Anatomy of the Cannabis Case

June 28, 2001

I read the Supreme Court’s recent medical marijuana decision, which struck down California's referendum to permit medical use, with great expectations. What a letdown. Here was my favorite justice—Clarence Thomas—slogging through the boring fields of statutory interpretation. Did Congress intend to allow the health of cancer patients to interfere with its drug warring? 

"It is clear from the text of the Act that Congress has made a determination that marijuana has no medical benefits worthy of an exception," Thomas wrote in the Court's opinion.

Don’t fault my man for speaking the truth about Congress. With a few exceptions, like Ron Paul, members of Congress couldn’t care less if you sick people die or go blind. Contrary to Salon.com, this was not a "nauseating ruling," but an accurate interpretation of a nauseating law. Thus far, our beloved Congress has taken no action to overturn the Court’s ruling, even though it has every right to do. 

Let’s back up. In 1996, the people of California, by referendum, changed California law to allow seriously ill people to obtain cannabis for medical purposes. The Oakland Cannabis Buyers Cooperative was formed to facilitate the distribution of cannabis for medical purposes. Cannabis is useful for cancer patients who must take chemotherapy. It helps fight the nausea that such treatment causes, allowing the patient to continue eating. Cannabis is also useful in the treatment of glaucoma, multiple sclerosis, and other illnesses.

The federal government—originally set up to fight foreign invaders and keep interstate commerce moving freely, but now in charge of every aspect of our lives—was bothered by this law. It has its own laws that forbid cannabis use without a federal permit (which is granted once each century). Desirous of overriding the will of the people of California, the feds realized they could indict the medical cannabis workers. 

They also realized, however, that juries sympathetic to dying patients would nullify federal drug laws. So they went to some people they could trust to assert the supremacy of the federal power elite over the people of the states:  federal judges. (Is that because federal judges are selected by the federal power elite?) A federal court ordered the buyers' cooperative to stop treating sick people. The cooperative heroically refused and was held in contempt of court. The Ninth Circuit reversed the contempt citations, holding that the common law defense of medical necessity was available to the cooperative.

Now we get to the Supreme Court, where Clarence Thomas writes the opinion. Does Clarence Thomas have a chance to prove the critics wrong once again and show that he is not a mindless clone of Scalia and Rehnquist? Unfortunately, most of the big issues that could have been decided by the Supreme Court were not even discussed in the court of appeals and thus were not squarely presented to the Supreme Court. Justice Thomas writes:

Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.

Let’s pretend that those "underlying constitutional issues" had been properly presented before the court. Here’s a how a Jeffersonian Republican like Clarence Thomas might have ruled. Thomas is the only justice on the Court who, I think, is prepared to scrap the Stalinist interpretation of the commerce clause—that it extends to "all activity that, when aggregated, has a substantial effect on interstate commerce" (Wickard v. Filburn, 317 U. S. 111 [1942])(Did Thomas defer a ruling on the "underlying constitutional issues" because he did not have the votes?) That "substantial effect" test, of course, means that Congress can regulate "all activity," period. A proper and limited interpretation of the commerce clause would protect the liberty of the people of the states from oppressive federal interference with their lives. 

On issues of federalism, regulation, and the right to bear arms, Clarence Thomas is the judge on the Court most willing to actually say what the authors of the Constitution meant when they wrote it. In his lone concurrence in United States v. Morrison (2000 U.S. LEXIS 3422 [May 15, 2000])he wrote:

I write separately only to express my view that the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.

That happens to be a nice description of the federal war on drugs: use of the commerce clause to enact legislation aimed at preventing behavior that is deemed harmful to people and communities. 

The original intention of the commerce clause was far different. Recall that the reason we allegedly needed a new constitution in the first place was that the states were fighting trade wars with each other, with tariffs and quotas enforced at the state lines. Madison wrote, "A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the former" (Federalist No. 42). He cited the examples of Switzerland and Germany, where provinces could not interfere with trade within the nation. The purpose of the commerce clause, therefore, was essentially negative: to prevent states from interfering with trade. Why would states enact a clause designed to liberate their interstate trade, but at the same time give the federal government absolute power over the entirety of their economic lives? Doesn’t make much sense, does it? 

To interpret the commerce clause as a generalized grant of power to the federal government to exercise absolute control over all aspects of human life merely because they have some tenuous connection with trade or commerce is absurd. In that view, the states and people have no residuary powers and rights under the Ninth and Tenth Amendments. The states are de facto abolished and the people are de jure enslaved. Unfortunately, that is exactly the new deal the Supreme Court imposed on us in the 1930s and '40s. 

Illustrative of the current judicial mindset on the commerce clause is a 2000 case from the Sixth Circuit Court of Appeals, United States v. Napier. There, the court upheld a law that made it unlawful for a person who was subject to a state court domestic violence order of protection to possess a firearm:

We . . . reject Napier’s contention that he could not be convicted . . . unless the government could show that his continued possession of the gun had a substantial connection to interstate commerce. There is no question that the firearm and ammunition possessed by Napier had previously traveled in interstate commerce. That is sufficient to establish the interstate commerce connection.

Rarely have the totalitarian implications of current commerce-clause doctrine been so starkly exposed. The federal government can regulate, control, ban, or prohibit the use of any good or product that at any time has crossed state lines. If it can totally ban such use, surely it can create less restrictive regulations as well.

So what do we have? In the world, we have people, earth, and material goods and products. Everything we do in our lives involves some interaction with products, 99.9 percent of which have traveled in interstate commerce or bear some other connection to interstate commerce. The government can prohibit us from using those products or issue less restrictive edicts in that regard. It can tell us what to do with our land if we have previously improved it by the use of commercial soil, fertilizer, or other products, and of course, almost all of us have done so. It can even control and regulate our bodies, if those bodies are involved in transporting goods across state lines. 

Tell me, my dear statist judges, what may the federal government not do us under your interpretation of the commerce clause? You have created a recipe for a totalitarian government that would stir Stalin's and Mao’s souls in hell. 

The commerce clause (Article 1, Section 8) of the U.S. Constitution states: "The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes. . ." A sensible reading of the interstate aspect of the commerce clause would restrict "regulation" to commercial transactions that involve the movement of goods or services across state lines. It would then remain to define the scope of regulation. 

So, we are left with basically three possible readings: (1) "regulation" defined as absolute and unqualified control over trade, including the total prohibition of trade; (2) "regulation" narrowly construed to accomplish the purpose of the commerce clause: creating a national free-trade zone by preventing states from imposing trade restrictions at states' borders; or (3) a middle-ground position, with "regulation" defined on an ad hoc basis.

Clarence Thomas is already on record opposing that first interpretation, and the ad hoc approach would involve judicial legislating, which Thomas certainly opposes. The only approach remaining, then, is the narrow interpretation of the clause, based on its language and history. That approach leaves no room for federal intervention into the traditional state and local issue of what medical treatment doctors can prescribe for their patients. Reference to the Ninth and Tenth Amendments would only bolster that conclusion. 

Also not decided by the Supreme Court was whether Californians have a substantive due-process right to use medical cannabis. Substantive due process is a controversial doctrine, but not without some basis in history and logic. Here’s a quick introduction to the need for a doctrine of substantive due process. Imagine you are a capitalist in Stalinist Russia. The state has decreed that all capitalists must go to concentration camps. But what about my procedural due-process rights? you ask. Okay, the Bolsheviks say, we’ll give you an indictment, right to counsel, and a trial, and you will be free to present evidence that you are not a capitalist. That’s procedural due process. Obviously, something more is needed. There must be a doctrine, based in natural law—or, if you think we can do without some form of natural law, based on a logical analysis of the purposes for which governments are formed—that limits the ends that government may lawfully pursue.

Here is an end that I humbly suggest the government may not lawfully pursue: the death of its citizens, totally apart from any scenario of war or punishment for serious crimes. Banning sick people from using marijuana even with the advice of their physicians is simply a policy of governmental murder, and the government should not murder its own citizens. That’s a thumbnail sketch of what might have been Clarence Thomas’s substantive due-process argument in support of medical cannabis. Maybe next time.

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There is good news about the persecution of Americans who want to control their own bodies and minds ("war on drugs," in Orwellian-speak). The United States, which invented both the drug war and the United Nations, got kicked off the UN committee on drug-war policy. Pour yourself a cup of coffee (regular), put your feet up on the desk, and savor that delicious irony for a moment.

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James Ostrowski practices law in Buffalo, N.Y. See his archive and send him MAIL.  

 


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