cannabisnews.com: Marijuana Use Isn't Commerce





Marijuana Use Isn't Commerce
Posted by CN Staff on December 04, 2004 at 07:55:34 PT
By Maggie Gallagher
Source: Sun News 
Hard cases make bad law, the old adage goes. But in the case of Ashcroft v. Raich, the medical marijuana case recently argued before the U.S. Supreme Court, the opposite may turn out to be true: A hard case may lead to a revival of a key principle of constitutional government: Congress has only limited powers over the states.Angel Raich's case is certainly a hard one, at least if you believe her account. Smoking marijuana keeps her alive and able to care for her daughter. Without it she couldn't eat or get out of a wheelchair, the pain and nausea of her brain tumor and other illnesses were so bad.
Medical authorities may dispute her claim, but in law, the case turns on an entirely different question: Not whether medical marijuana is effective or not, but whether growing marijuana in your own home for your own medical use constitutes "interstate commerce."Do federal laws banning marijuana usurp California's state law permitting homegrown medical marijuana?The glitch is a 1942 case, Wickard v. Filburn, in which a federal law limiting wheat production was held up, banning Roscoe Filburn from growing and using wheat on his own farm, on the grounds that if you added up all the wheat grown and consumed on family farms, it might have an indirect effect on interstate commerce (i.e., the wheat that might have been sold across state lines if they hadn't grown and consumed their own wheat). So expansive was this reading that for 30 years, any law passed by Congress was held to automatically qualify as "interstate commerce" because just about any act could potentially affect commerce, however indirectly.Which is why Justice David Souter in the oral arguments focused on the potential volume of marijuana that could be grown and consumed by sick people in California. I've condensed the argument from legal scholar Lawrence Solum's report on his legal theory blog: http://www.lsolum.blogspot.com/Souter is questioning Raich's lawyer, Randy Barnett:Souter: "Suppose that 100,000 people are in chemotherapy in California. Then couldn't there be 100,000 users of medical marijuana?"Barnett: "There could be. ... Wickard v. Filburn's aggregation principle does not apply if the activity involved is noneconomic."Souter: "But isn't it economic activity if it has a sizable effect on the market?"Barnett: "No. The effect on the market is only relevant if it is market activity. ... The point is that economic activity and personal liberty are two different categories."Souter: "That is not a very realistic premise."Barnett: "The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic."Barnett is right, of course: Sex within marriage is not economic activity, and therefore regulating it is not regulating "interstate commerce" even though marital sexual activity may affect say, the purchase of lingerie, sheets or even prostitutes.So is growing marijuana in your own home for your own medical consumption "interstate commerce," as the government alleges?I think the answer is clear: No. Therefore Congress has no power to restrict Raich's personal consumption activity, no matter how much you or I or a majority of voters disapprove off the California law that permits it.Source: Sun News (Myrtle Beach, SC)Author: Maggie GallagherPublished: Saturday, December 4, 2004Copyright: 2004 Sun Publishing Co.Contact: opinions thesunnews.comWebsite: http://www.myrtlebeachonline.com/mld/sunnews/Related Articles & Web Site:Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmHealth Issue Goes To Pothttp://cannabisnews.com/news/thread19966.shtmlWill Justices Favor Compassion or Contradiction?http://cannabisnews.com/news/thread19965.shtmlOur Right To Be Free from Painhttp://cannabisnews.com/news/thread19954.shtml 
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Comment #1 posted by FoM on December 04, 2004 at 08:01:05 PT
Heads Up: Fox News Pot Stocks
Coming on soon! It's called Forbes on Fox!
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