Another Witless Linguistic Error by the Supremes

In Section 8 of the U. S. Constitution, it asserts that

The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This provision has recently been used by the Supremes to justify upholding the position that federal anti-drug laws can trump state laws that allow the growing of marijuana for private use by individuals to relieve suffering.

What, you ask, does growing six marijuana plants for private use have to do with interstate commerce? Nothing of course. Justice Sandra Day O'Connor, whom I have criticized in a prior blog takes the position that

The majority's opinion, said O'Connor, "is tantamount to removing meaningful limits on the Commerce Clause." Applied to the facts in the case, the majority's definition of economic activity "is breathtaking." Indeed, the court threatens "to sweep all of productive human activity into federal regulation reach."

Where is the commerce in this case? O'Connor could not find it: "The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character." The marijuana at issue "was never in the stream of commerce and neither were the supplies for growing it." There is "simply no evidence that homegrown medicinal marijuana users" constitute a discernible, let alone substantial market in illicit drugs.

This passage I have lifted from an op-ed piece by James Kilpatrick, whom I have also criticized in a prior blog. Kilpatrick this time takes the correct position by siding with Justice O'Connor.

Indeed it is hard to see where commerce would be involved in the growing of marijuana by an individual exclusively for his or her own use. The predicate "regulate Commerce among the several States" has a clear or plain meaning according to which there must be an exchange of some sort by which some entity (person or business) obtains goods or services from some entity in another state by supplying something of value to the entity providing the goods and services. The key word here is "exchange." Manifestly, in growing six marijuana plants exclusively for private use, there is no exchange of one thing for another bytwo entities, much less entities in two different states.

So, how is it that Justice John Paul Stevens could maintain that the growing of six marijuana plants exclusively for private use constitutes commerce? In a story by Linda Greenhouse in The New York Times she writes that Justice John Paul Stevens claimed that

the court's precedents had clearly established "Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce.

This is, of course, presupposes a monumentally stupid application of the phrase "regulate commerce among the several states." By his argument, my baking bread at home could be prohibited by Congress on the grounds that bread baking is part of an economic class of activities (i.e., bread baking) that has a substantial effect on interstate commerce. In fact, the growing of marijuana for sale by an entity in one state to an entity in another state, would be a legimate instance of a "class of activities that have a substantial effect on interestate commerce" (if I understand this phrase correctly). But does Justice Stevens wish to provide protection for the illegal sale of marijuana across state lines by limiting growth intended for the exclusive use of the individual growing the marijuana? That would be an interesting application of the law.

What we have here is another effort of the Extreme Right Wing to impose its views of morality on the rest of us. In this case it is the Bush administration's Justice Department's effort to void the state law protecting use of medical marijuana. Justice Stevens suggests that Congress might remedy the problem faced by those who maintain that they need marijuana to relieve the suffering they endure. That is a silly suggestion. I just can't see a Congress that wanted to interfere in the Terri Schiavo case to force the husband of this poor woman to abide by their perverse pro-life views somehow deciding that it is okay for people to grow marijuana for private use.

Justices Sandra Day O'Connor, William Rehnquist, and Clarence Thomas dissented. Antonin Scalia sided with the majority. In a prior blog, I claimed that Justice Scalia tended to get the interpretation of language right. I hereby retract that statement.