Gonzales v. Raich and the New Federal Government

An Essay on Judicial Activism

On Jan, 16, 1919, the 18th amendment was ratified. It took an amendment to the U.S. Constitution to ban the manufacture, sale, transportation, importation or exportation of intoxicating liquors.

The question I would ask: What changed, constitutionally, between 1919 when it required an amendment to ban a substance, and 1970 when the Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Shortened to Controlled Substances Act or CSA), which banned many substances with the same effect as the Amendment on prohibition?

Keep that question in mind, as you read the rest of this.

First, in a letter by James Madison to Joseph C. Cabell (13 Feb. 1829 Letters 4:14--15), Madison writes:

"For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

I call your attention to the above, because on June 6th, 2005, The Supreme Court in a 6-3 decision against Raich, voted to scuttle the Constitution of the United States. Not even Hamilton, in his wildest dreams, would have disputed Madison's' meaning of the Commerce Clause above (fact is, he didn't. Read Federalist #45).

The case is Gonzales (was Ashcroft) v. Raich. Nominally, it was about the right of a State to allow certain individuals to use marijuana as a proper and legal medication. Ten states currently have laws that allow for this. This however, is not what the ruling yesterday did. It is only peripherally about marijuana, or any drug in particular. The bigger issue at hand is the issue of how far may the Federal Government reach into our daily lives in order to regulate (control) anything it (the government) claims might have even the most tenuous connection to interstate commerce.

The Court could just have easily exempted Medical Marijuana use from the bounds of the Controlled Substances Act of 1970, as it pertains to the states themselves. Justice Thomas pointed this out. The Court was in no way bound to this rather sweeping power grab by the Congress.

Justice Thomas from his dissent:

"Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress power in Lopez and Morrison, but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United States v. Raines, 362 U. S. 17, 20 21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U. S. 294, 295 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 249 (1964); Wickard v. Filburn, 317 U. S. 111, 113 114 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental."

The ruling itself was simple. It was in the majorities dicta that the details become the devil. And this same dicta will be used as the basis for every subsequent usurpation of power by the Congress. The Court has laid out the road map upon which they have told the Congress how to enact law, that the Court will abide by, that will become ever more encompassing.

Here, the majority dances around what it calls "the power to regulate activities that substantially affect interstate commerce" to include the absolute minimal affect of activities and that these activities (the de minimus character) are of no consequence (see Westfall v. United State, 274 U.S. 256, 259 [1927]) and also Wickard v. Filburn).

You will find that the majority focuses upon Wickard v Filburn extensively. This was the first true Commerce Clause case that expanded federal powers in the 20th century. It set the standard for what is now called the "substantial effects" test, wherein an item of manufacture or production may substantially effect interstate commerce regardless of the item is actually in interstate commerce or not. Derived from this (Wickard and subsequent cases), is the "rational basis" test, wherein something not in interstate commerce may so be found, as long as there is a rational basis to think that it might enter into such commerce. These two test then are used to define that which Congress may regulate, reaching into the states or private individuals.

Justice Stevens, writing for the majority:

"In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27"

Justice Stevens then charts the areas that the Congress may regulate under this "new era:"

1. The channels of interstate commerce,

2. The instrumentalities and persons or things in interstate commerce.

3. Activities that substantially affect interstate commerce.

It is this 3rd classification that has changed. And that change occurred with the ruling in Wickard: "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

The majority then goes on to explain how Commerce equals any economic activity that can be conjured up. Stevens goes so far as to use a 40 year old dictionary definition of the word, specifically to include an activity that was never defined as such before or since: "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). No other dictionary uses "consumption" to indicate an economic function. The majority really had to reach for that one, and Justice Thomas noted it well in his dissent. And this is where Stevens ties economic activity to commerce: "The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product."

I could go on, quite at length, quoting the majorities reasoning. Suffice it to say, that it appears that this decision was reached and then Stevens wrote the reasoning for the majority to conform to the decision. This is evident, because Justice Scalia, while concurring with the majority, wrote his own decision to explain his reasoning, and it doesn't match the majorities' in most forms.

Now let's consider the dissenting opinions. O'Conner wrote the dissent in which Rehnquist and Thomas agreed. Thomas however, wrote his own dissent, since it appears he did not agree with O'Conner's' point in part three of her dissent.

O'Conner observes:

"The Courts definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.... Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow--a federal police power."

She also wrote:

"If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers."

Then there is the dissent from Justice Thomas, which starts off with:

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

Thomas then explains:

"Respondents local cultivation and consumption of marijuana is not 'Commerce . . . among the several States.' U. S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not 'necessary and proper for carrying into Execution' Congress restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct."

Yet another of Justice Thomas' dissenting arguments:

"To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the acrosstheboard ban essential to policing interstate drug trafficking. 21 U. S. C. §801(6). But as JUSTICE O CONNOR points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 13 14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments."

All in all, I believe that Justice Thomas and (to a somewhat lessor extent) Justice O'Conner have it correct. The Majority has simply shredded the Constitution.

Part of the problem, if not the main problem itself, is the doctrine of Stare Decisis. The Courts hold this to be sacrosanct, when it is not. Precedence is but a tool. Properly used, it allows the courts not to have to reinvent the wheel, over and over again, as they decide each new case.

But precedence has long been used to expand a little here, a little there, until we reach what we did yesterday. This case is just the most glaring example of judicial activism yet. The Supreme Court, with its power of Judicial Review, is not bound by stare decisis, when such action conflicts with the Constitutional principles of enumerated federal powers. The Court has shown that it no longer plays a part in the system of checks and balances, whether that balance is between the feds and the states or between the federal authorities themselves, or in protecting the rights of the people.

When one reads Justice Scalia's separate concurrence with the majority, it not only becomes evident that he will not disturb precedence, but that Scalia reveres those prior decisions.

In sum, this is what Justice Thomas infers from the majority decision:

"Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate 'Commerce,' and respondents' conduct does not qualify under any definition of that term. The majority s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from 'commerce,' ante, at 1, to 'commercial' and 'economic activity,' ante, at 20, and finally to all 'production, distribution, and consumption' of goods or services for which there is an 'established . . . interstate market,' ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it."

As Justice Thomas implied, the Constitution has been rewritten, not by Constitutional means, but by Judicial fiat.

The common man does not see things this way. They are not used to scrutinizing what the Congress or the Courts do. They go about their days busy with the business of living, firm in their trust that the government will do the right thing. That is, after all, what most of us do.

A couple more quotes and I will be about done.

Madison had this to say about the role of the Courts:

"As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper."

And Jefferson had this to say about Judicial Review:

"The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

Remember that question I asked in the beginning of this long missive? There have been no constitutional changes, other than the Court consistently broadening of one specific enumerated power of Congress to the point where Congress now has all power to regulate anything and everything.

It has taken me most of the last four days to compose this (as I finish writing this, it is June 9th, 2005). I have perused opinions of the legal community and many papers from the national media. The media has virtually ignored this case, except to focus on the marijuana issue. The legal community, for the most part, is at ease with the decision, even though they understand the implications I have just outlined. To me, it shows the nature of those inured to law and law alone. I have tried my best to keep my emotions in check and write from the intellect rather than the heart. I hope I have achieved that goal.

Copyright © 2005 by Allen Norris, All Rights Reserved.

Permission is given to use all or part of this essay for non commercial purposes, as long as no text is changed and this complete copyright notice if left intact.

The author may be contacted at: Al Norris


The author may be contacted at: Al Norris