Pubdate: Sun, 12 Jun 2005
Source: Washington Times (DC)
Copyright: 2005 News World Communications, Inc.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Note: Steve Chapman is a nationally syndicated columnist.
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

FEDERAL POWER DAZE

The chief author of our Constitution, James Madison, had little
patience for those who accused him and his allies of trying to create
a large, intrusive federal government.

In 1788, he noted pointedly the "powers delegated by the proposed
Constitution to the federal government are few and defined." Those of
the states, by contrast, "are numerous and indefinite." Last week,
addressing the same question, the Supreme Court said, "James who?"

In recent years, the justices had flirted with restoring to the states
some authority they once exercised. After the court's half-century
love affair with centralization, that came as a shock to almost
everyone. But the new romance didn't last.

The court's decision to uphold the federal ban on medical marijuana is
a victory for those who think the federal government should be free to
poke its snout anywhere it wants -- an approach, conservatives should
note, consistently favored by the Bush administration. In this
instance, that policy means punishing seriously ill people whose
doctors have recommended the therapeutic use of marijuana in
compliance with California state regulations.

Under California law, patients may obtain and use marijuana under a
physician's suggestion. But that didn't stop federal drug agents from
going after Diane Monson. They confiscated six cannabis plants she had
grown to treat the intense pain caused by her spinal disease.

She, however, was seized by the idea California law should count for
something in California. Ms. Monson and a fellow patient filed a
lawsuit arguing that their pot use was purely a state matter, beyond
federal reach.

For a long time, that sort of claim was routinely laughed out of
court. Starting in the 1930s, the court waved through a long parade of
federal laws and regulations going well beyond what was allowed
before. The federal government was now free to intrude into all sorts
of spheres, the court explained, because of its power to regulate
interstate commerce.

It devised this theory mainly because it wanted a way to sanction
Franklin D. Roosevelt's New Deal -- not because it had any legal
basis. The constitutional power to regulate interstate commerce, when
written, had a far more modest purpose.

Under the Articles of Confederation, states could erect trade barriers
to protect home industries from competitors in other states, to the
detriment of national prosperity. So when the time came to draft a new
Constitution, the delegates wanted a national free-trade zone. Hence
they gave Congress authority to "regulate commerce ... among the
several states."

That's "among," not "within." Clearly the feds had some latitude to
address economic matters that affected two or more states, but not to
police commercial activity confined to a single state.

And in 1995, the Supreme Court revived the concept that the ambit of
the federal government is one of "enumerated powers" -- meaning those
powers specifically granted by the Constitution. The commerce clause,
it said, is not a blank check for Washington to meddle in local matters.

So Ms. Monson should have won her case in a walk. The marijuana she
used was not part of interstate commerce. In the first place, it was
never any kind of commerce: She grew it herself. In addition, it never
left her home state. No one in Nevada or Arizona smelled the smoke or
enjoyed the high.

Yet this Supreme Court managed to find excuses to rule against her.
Justice John Paul Stevens, quoting from a 1942 decision, insisted
that, even if an activity "is 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."

Oh? The Constitution empowers Congress to regulate interstate commerce
- -- not anything affecting interstate commerce. Still, it's absurd to
think Ms. Monson's six plants could have the least effect on the
national marijuana market.

So the court was driven to say Congress not only has the power to
regulate anything that might affect interstate commerce, it has the
power to regulate anything that might affect anything that might
affect interstate commerce. As dissenting Justice Clarence Thomas
warned, "If the majority is to be taken seriously, the federal
government may now regulate quilting bees, clothes drives and potluck
suppers throughout the 50 states."

Yes, Mr. Madison, our federal government is one of a few defined
powers -- and a whole lot of undefined ones.
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MAP posted-by: Richard Lake