cannabisnews.com: Pot Luck: A Victory for Federalism Pot Luck: A Victory for Federalism Posted by CN Staff on December 19, 2003 at 09:01:45 PT By Jacob Sullum Source: Reason Magazine Roscoe Filburn and Diane Monson both got into trouble with the federal government because of plants they grew. The future size and shape of that government hinges on whether those plants were any of its business—and, if so, why. Filburn, an Ohio farmer, grew 23 acres of wheat, 12 more than he was allowed under the Agricultural Adjustment Act. Most of it stayed on his farm, where he milled it into flour for his family, fed it to his livestock, and used it to plant the next year's crop. In 1941 Secretary of Agriculture Claude Wickard fined Filburn for his excessive self-reliance. Monson, a California office manager and bookkeeper, grew six marijuana plants, six more than she was allowed under the Controlled Substances Act. She planned to use the cannabis to relieve severe back pain and muscle spasms caused by a degenerative spine disease, as permitted under California's Compassionate Use Act. In 2002 agents of the Drug Enforcement Administration raided her home and seized the plants. Filburn challenged Wickard's penalty in federal court, arguing that the Constitution did not give the federal government the authority to tell him how much wheat he could grow on his own land for his own use. The Supreme Court disagreed, saying Congress was legitimately exercising its power to regulate interstate commerce. After all, Filburn might decide to sell the wheat, and even if he didn't, he reduced overall demand by growing his own. In the aggregate, the Court reasoned, growing wheat for home consumption could have "a substantial economic effect on interstate commerce." For more than half a century Congress has used this expansive reading of the Commerce Clause as a license to legislate on just about any subject it likes, gradually erasing the crucial constitutional distinction between state and federal powers. Only recently has the Court begun to suggest that the Commerce Clause is not infinitely elastic, and it still has not revisited Wickard v. Filburn. So when Diane Monson and another medical marijuana user, Angel McClary Raich, sought an injunction to prevent the DEA from seizing their cannabis or arresting them, they had to convince a federal court that their situation was different from Roscoe Filburn's in a way that mattered. In a case that suggests both the promise and the limits of the Supreme Court's recent Commerce Clause decisions, they succeeded. On December 16, the U.S. Court of Appeals for the 9th Circuit ruled that the Controlled Substances Act "is likely unconstitutional" as applied to Monson and Raich, overturning a district court's refusal to grant them a preliminary injunction. The 9th Circuit concluded that growing marijuana (or obtaining it for free from others, as Raich does) for one's own medical use "is not properly characterized as commercial or economic activity." It added that any impact on interstate commerce would be "attenuated." This is the third case this year in which the 9th Circuit has tried to define the boundaries of the Commerce Clause. Each decision has been narrow: The first involved child pornography that never crossed state lines and was not intended for distribution; the second dealt with homemade machine guns that met the same criteria; and the most recent one is limited to "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." But taken together, these rulings help revive the idea that the Commerce Clause is not a blank check. They also show that "federalism is not just for political conservatives," as Monson and Raich's attorney, Boston University law professor Randy Barnett, put it. At the same time, the cases show how tricky it is to enforce limits on federal power without reconsidering the "substantial effects" doctrine exemplified by Wickard. The dissenting judge in Monson and Raich's case argued that growing marijuana for your own medical use is no less "economic" or "commercial" than growing wheat to feed your family. He has a point. Like Filburn's wheat, Monson's marijuana could be sold, and in any case growing your own medical marijuana affects the overall demand for cannabis (and possibly for pharmaceutical substitutes). The constitutional argument for letting the DEA seize Monson's marijuana is ridiculous, but it's not indisputably more ridiculous than the constitutional argument for letting the Department of Agriculture fine Filburn. When the law is a joke, it's hard to predict which arguments the courts will take seriously. Jacob Sullum is a senior editor at Reason and the author of Saying Yes: In Defense of Drug Use -- http://www.reason.com/sayingyes/ -- (Tarcher/Putnam).Copyright 2003 by Creators Syndicate Inc.Source: Reason Magazine (US)Author: Jacob SullumPublished: December 19, 2003Copyright: 2003 The Reason FoundationContact: letters reason.comWebsite: http://www.reason.com/ Related Articles & Web Sites:Raich v. Ashcroft.comhttp://raich-v-ashcroft.com/Raich v. Ashcroft in PDFhttp://freedomtoexhale.com/ruling.pdfWhere’s The Compassion?http://cannabisnews.com/news/thread18003.shtmlFederalism Wins - National Reviewhttp://cannabisnews.com/news/thread18002.shtmlA Landmark Victory - Ann Harrison http://cannabisnews.com/news/thread17996.shtml Home Comment Email Register Recent Comments Help Comment #30 posted by FoM on December 21, 2003 at 14:50:05 PT escapegoat Thanks escapegoat. I appreciate all the energy you have and you seem to use it wisely. Keep up the good work! We need you!Happy Holidays to you! [ Post Comment ] Comment #29 posted by escapegoat on December 21, 2003 at 14:36:20 PT Ages I'm 31. I've been told I have an old soul, though. And frankly, I want to get this stuff over with before I run out of energy. >:) [ Post Comment ] Comment #28 posted by FoM on December 20, 2003 at 07:47:43 PT billos and jose Thank you. I turned 56 in November. I don't feel that old but I am. It beats the alternative! I have a few more good years ahead but then it will be time to put me out to pasture. An old age hippie home will sound just wonderful! LOL! [ Post Comment ] Comment #27 posted by jose melendez on December 20, 2003 at 05:56:21 PT thanks " I always get the feeling that everyone else on this site is 18 or so. "How kind of you to say so, billos! And, FoM . . . I just turned 37, thank you so much for your gift of cannabisnews.com to the world. Peace out. [ Post Comment ] Comment #26 posted by jose melendez on December 20, 2003 at 05:48:33 PT freedom fighter Think soup, not smoke. If you need to heal your face, maybe ash and soot is not the best thing right now. That's just my layman's opinion, of course. wage drug peace [ Post Comment ] Comment #25 posted by billos on December 20, 2003 at 02:43:47 PT: FoM .........Please accept my sorrow for the loss of your son. However, noticing the age he would have been means that you must be getting to be an ole' geezer such as myself. It's nice to know there are others in my generation here. I always get the feeling that everyone else on this site is 18 or so. Have a great Holiday. [ Post Comment ] Comment #24 posted by FoM on December 19, 2003 at 22:07:13 PT freedom fighter I'm really sorry about the dog attack. We were offered a Pit Pull puppy not too long ago but we got a shephard - wolf mix from animal rescue. She is a nice dog and a companion for our Rott. I was afraid to get the Pit Bull. We had French Dogue de Bordeouxs and they are big and aggressive towards other dogs but not people. The Pitt Bull reminds me of a dog that requires special care and it seems many of them don't do well and wind up being destroyed. On Animal Precinct on the Pet Channel I see a lot more Pitt Bulls then any other dogs. [ Post Comment ] Comment #23 posted by Virgil on December 19, 2003 at 22:03:02 PT Freedom Fighter Now, can anyone tell me that I should'nt do that?The Prickident of the United States. I only said that because I thought I had me a new word. Google found this one use by a guy at this link referring to Cheney and called him Vice Prickident- http://www.indymedia.org.uk/en/2003/03/59755.html So he beat me to it. He did not say Bush acts Prickidential though.To me using cannabis is all but an act of patriotism. I am for giving the dog some if cannabis were Free. [ Post Comment ] Comment #22 posted by freedom fighter on December 19, 2003 at 21:39:48 PT Today, I nearly got mauled by a pit bull and to read the postings here make me so apprecative of who I am and who I am hangin around with. The dog tore off about half inch by quarter inch and quarter inch deep of my lip. He was really after my throat. I did not provoke that dog. Sigh!I know my doctor did not recommed me to smoke a bud.But, I think I have the right to prescribe myself whatever I want. I think and know I much rather smoke few kind buds than pop some Viocidian?(the one that the doc had prescribed mee).Now, can anyone tell me that I should'nt do that?Life is so damn precious. ff [ Post Comment ] Comment #21 posted by CorvallisEric on December 19, 2003 at 19:27:00 PT Bowel Enforcement Agency With the Federal Govt's responsibility for divvying-up precious Colorado River water, it's no joke to suggest the BEA might be better use of our money than much of what the DEA does. [ Post Comment ] Comment #20 posted by FoM on December 19, 2003 at 16:41:52 PT sukoi Thank you! I believe we should make the most of the time we have and then we won't have as many regrets when it's all said and done. [ Post Comment ] Comment #19 posted by sukoi on December 19, 2003 at 16:28:22 PT FoM I’m sure he was, I’m sure you did and I sure hope so too; respectively! [ Post Comment ] Comment #18 posted by FoM on December 19, 2003 at 16:20:35 PT sukoi Thank you. I am still watching this marvelous concert for George Harrison. Today is a good day for me to take it in. I don't talk too much about my life because I don't want to bum anyone out. My son was very kind. He loved California. I had a few weeks to spend in West Hollywood with him and I learned alot about myself and understanding. He had many friends. His life was short but it was a full life. I hope that everyone lives as fully as he did in his short time here with us. [ Post Comment ] Comment #17 posted by FoM on December 19, 2003 at 16:12:57 PT EJ Comment 4 I agree with you. [ Post Comment ] Comment #16 posted by sukoi on December 19, 2003 at 16:09:16 PT FoM I never knew about your loss and am truly sorry! I don’t know the particulars nor will I ask, I have a pretty good idea. FoM, your son would be so proud of what you are doing and who knows, maybe he is helping to make this happen around his birthday. I feel a certain kind of kinship with him, I guess it's because he would have been almost exactly a year younger than me (my birthday was on the 2nd). You are the kindest person that I’ve ever met/read on line and I'm sure that everyone here feels the same way. I’m sure that you miss him and I’m sure that he misses you too. You are a wonderful caring person and your son knows that wherever he may be! [ Post Comment ] Comment #15 posted by agog on December 19, 2003 at 14:33:28 PT E.Johnson Comment #8 Great Satire!That could be used on the "Daily Show".All the Best to the community. Agog [ Post Comment ] Comment #14 posted by FoM on December 19, 2003 at 14:24:07 PT druid Thank you. Keep up the good work you are doing too!Happy Holidays! [ Post Comment ] Comment #13 posted by FoM on December 19, 2003 at 14:18:39 PT ekim Thank you. I know that he is smiling down on us today. This has been a long battle and for now it seems like we have hope. I don't want anyone who needs Cannabis to help them be denied anymore. He never was able to benefit from Cannabis and if he had been he might have lived a year or two longer. Each day is precious and that is what Cannabis can do to help extend life I believe. My trucker is special. Happy Holidays to you! [ Post Comment ] Comment #12 posted by druid on December 19, 2003 at 14:16:19 PT FoM Our thoughts and hearts go out to you on this day. Your son would have been 2 years older than me. Thanks for all the good work you do for the movement [ Post Comment ] Comment #11 posted by ekim on December 19, 2003 at 14:11:29 PT Gee FoM here is the best to you and the Trucker He must be the proudest Son ever, telling everyone that that FoM is my mom. [ Post Comment ] Comment #10 posted by FoM on December 19, 2003 at 12:26:21 PT kaptinemo Thank you. I know that he would be happy for me and us today so I'm going to be happy too. [ Post Comment ] Comment #9 posted by kaptinemo on December 19, 2003 at 11:46:56 PT: FoM, I'm sorry about your son I didn't read all the comments as I usually do before locking-and-loading my favorite anti-Anti weapon. I'm sorry about the memory of your loss. It never is easy.Max, all I do here is all I have ever done: take a spleen full of bile put there by antis, concentrate it and squirt it right back where I know some of them are looking...namely, right here...right into their eyes. Every time I write something, I hope that I am giving the lie to the inarticulate, Cheech-and-Chong stoner stereotype antis are forever slapping on us. Which *never* fitted me to begin with. And I daresay few among us ever did. Looking at me, you'd never know I was a middle aged devout cannabist. One more proof against their lies that a 'stoner' can't succeed. [ Post Comment ] Comment #8 posted by E_Johnson on December 19, 2003 at 11:34:36 PT Commerce clause restricts bowel movements? In a stunning victory today, the Ninth Circuit affirmed a woman's right to have bowel movements against the advice of the federal government.Previously the commerce clause of the Constitution had been invoked to support federal regulation of bowel movements of Americans."If you go poo, then you have to flush, and to flush you have to use water, and if you use water, well then that affects the interstate commerce in water," said Karen Tandy, head of the federal Bowel Enforcement Administration, arguing for the position of the Bush administration that nothing, not even what comes out of our rear ends, can escape federal control. [ Post Comment ] Comment #7 posted by FoM on December 19, 2003 at 10:44:24 PT goneposthole That was beautiful. Thank You and Happy Holidays! [ Post Comment ] Comment #6 posted by goneposthole on December 19, 2003 at 10:39:18 PT the miracle of life everyday it is there, ol' life. everyday it is there for you and yours. Each and everyday, it doesn't go away. Something to behold, always cherished, not to be taken for granted.from a grain of wheat to a bud of 'pot', life won't give up.No matter who or what tries to intimidate life, limit life's forms to their liking, mold it to a shape that is acceptable, it just keeps changing, growing, adapting.Life will not give it up. New suns, new planets, new life each and every day. I will hope that the US government will learn a little about life. It is time for it to growup and learn something.Teaching the US government about life is a difficult job. Maybe over a period of time, it will finally grasp the concept. It should before it finally loses its own. Maybe it has the bah humbug.The US government's chances are slim, though.Tokin' through the Holidays. [ Post Comment ] Comment #5 posted by Max Flowers on December 19, 2003 at 10:18:43 PT kaptinemo That's alright, the stuff you do write is infinitely more important...Happy Holidays, fellow fighters of the good fight!-MF [ Post Comment ] Comment #4 posted by E_Johnson on December 19, 2003 at 10:11:57 PT FoM Love will win and it's on our side. [ Post Comment ] Comment #3 posted by kaptinemo on December 19, 2003 at 09:35:46 PT: GCW, I was ROFLMFAO! Many, many thanks for some much needed laughs! Man, I wish I could write stuff like that! LOL! [ Post Comment ] Comment #2 posted by The GCW on December 19, 2003 at 09:30:36 PT In Case You Missed It: Sing this. US CO: That loser George WViewed at: http://www.boulderweekly.com/incaseyoumissedit.html That loser George W You’d have to look far and wide to find a world leader more incompetent than our own George W. The dolt who launched a thousand quips, George W has inspired bards with his shenanigans, as evidenced by these verses, which arrived in the Boulder Weekly inbox last week. We’re not sure where this came from, but here it is. Sing this ditty to the tune of "The Beverly Hillbillies" theme song. Come and listen to my story ’bout a boy name Bush. His IQ was zero, and his head was up his tush. He drank like a fish while he drove all about. But that didn’t matter ’cuz his daddy bailed him out. D.U.I., that is. Criminal record. Cover-up. Well, the first thing you know little Georgie goes to Yale. He can’t spell his name but they never let him fail. He spends all his time hangin’ out with student folk. And that’s when he learns how to snort a line of coke. Blow, that is. White gold. Nose candy. The next thing you know there’s a war in Vietnam. Kin folks say, "George, stay at home with Mom." Let the common people get maimed and scarred. We’ll buy you a spot in the Texas Air Guard. Cushy, that is. Country clubs. Nose candy. Twenty years later George gets a little bored. He trades in the booze, says that Jesus is his Lord. He said, "Now the White House is the place I wanna be." So he called his daddy’s friends, and they called the GOP. Born again, that is. Falwell. Jesse Helms. Come Nov. 7, the election ran late. Kin folks said, "Jeb, give the boy your state!" "Don’t let those colored folks get into the polls." So they put up barricades so they couldn’t punch their holes. Chads, that is. Duval County. Miami-Dade. Before the votes were counted, five Supremes stepped in. Told all the voters, "Hey, we want George to win." "Stop counting votes!" was their solemn invocation. And that’s how George finally got his coronation. Rigged, that is. Illegitimate. No moral authority. Y’all come vote now. Ya hear? Respond: letters boulderweekly.com [ Post Comment ] Comment #1 posted by FoM on December 19, 2003 at 09:09:26 PT Just a Small Comment I thought it would be OK to mention that this day has been a sad one for me for the last few years. Today my son would have turned 37. To wake up and find three good articles right away has made me very happy. Maybe we will win!Happy Holidays Dear Friends! [ Post Comment ] Post Comment