Wednesday, June 22, 2005

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.

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Blogger Russell said...

Though I generally agree that using the commerce clause to regulate growing marijuana for personal use only is far beyond the realm of rational interpretation of the constitution, it's important to remember that some perhaps questionable interpretations of the same words allowed the upholding of the Civil Rights act and (I believe) the Americans with Disabilities act, among other progressive legislation.

2:00 AM

Blogger The Language Guy said...

Hmm, that gives one pause to think. Could you or someone else point me to the relevant decisions? Thanks for the comment.

Assuming you are right, it goes to show that if you start messing with the truth -- in this case, what words mean -- to do good, someone will surely come along and do something bad. It is an unlocked door anyone can go through.

5:43 PM

Blogger The Language Guy said...

I have found a very useful blog on the commerce clause being used by the Superemes to uphold a variety of federal laws including those mentioned by russell. Check out The American Constitution Society Blog

11:18 AM

Anonymous Anonymous said...

I agree with you wholeheartedly. The Supreme Court majority decision is screwy at best. Justice O’Connor should be applauded for her minority statement. But the larger question still remains—how can the American people tolerate this kind of trampling on our rights by a right-wing administration, that got into power in the first place by stealing an election?

Medicinal marijuana has been with us for centuries and it will be used as such for many more, even if all the control freaks of the right-wing hold their breaths and wait for their heads to explode. Bush’ popularity is plunging and now the generals are going after Rumsfeld. Their days are numbered.

I live in one of the eleven states that allow the growing and use of medicinal marijuana, so I am directly effected by the Supreme Court decision. I am totally debilitated, so my caregiver grows the plants for me. I’d rather not say what terminal illness I’m suffering from, it’s beside the point. The point is that not only am I and my caregiver liable to federal prosecution, but so is the doctor that prescribed my medpot.

So far we’ve escaped the long arm of the DEA, but the knock on the door could theoretically happen any minute. We try to keep a low profile, and grow the pot plants in a secluded part of our rather large garden, but still. They have sniffer dogs and helicopters, don’t they?

The only good part of this scenario is that my caregiver has found a medpot company online, which not only gave her expert advice on how to start growing pot, but also provided her with a list of products necessary for producing robust, healthy, powerful pot plants. After all, they’re my medicine!

To nourish our plants, we were advised to use a 3-part, time-release fertilizer called Heavy Harvest, which has to be applied only three times per year, Spring, Summer, and Fall. The Nitrogen, Phosphorus, Potassium balance is expertly allocated in all three parts, so that optimum growth is insured at various times of the plant’s life.

We also treat our plants with Scorpion Juice, to inoculate them against various pests and diseases. It provides our pot plants with Systemic Acquired Resistance, and for the past two years (knock on wood) it has kept our little pot garden problem free.

I can’t recommend the Advanced Nutrients Medical company highly enough. Any medpot patients out there thinking about growing your own? Visit their website, you can’t go wrong!

6:25 AM

Blogger Brian said...

First, let me say that the use of the commerce clause to justify the regulation of classes of economic activity that involve no actual commerce, let alone the interstate variety, goes back to Wicker vs Filburn, 1942.

According to that decision, yes the government can prohibit you from baking your own bread, even if you grew your own wheat, milled it yourself, and personally produced everything else that went into making that bread yourself.

That's what wheat farmer Roscoe Filburn did during the depth of the Great Depression. He grew his allowed quota - established by the agricultural adjustment act - but wanted to grow some more for his own family's use. This caused him to run afoul of Roosevelt's watchful bureaucrats. The government argued that even though it was for his own use, it would affect interstate commerce because he was using wheat he would otherwise have purchased. The Supreme Court agreed. Same reasoning was used in this marijuana decision.

I'm sure you view the New Deal favorably as power being used for good, but the use of that to regulate medicinal marijuana a perversion of that power.

That observation segues perfectly into my next observation. You object to a group using government power to impose its morality on others, but government imposes its morality in countless ways. The minimum wage laws are an example. They cannot be justified on economic grounds, and its supporters rarely argue the economics. It is always couched in the most moralistic terms. And curiously, it is often the same people who oppose the morality of the "Extreme Right" who have no problem imposing their own form of morality on others through the force of law.

Matter of preference I suppose. Corrupting the commerce clause for the gain of a few civil rights laws is apparently ok (to another commenter at least). But you shouldn't complain when your abomination turns on you.

12:17 PM


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