Judicial Activism, Marijuana and the Interstate Commerce Clause

The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that we, our children, and our children's children are going to live under.

The 10th Amendment to the Constitution says that all powers not granted to the federal government belong to the states or to the people.

Those who wrote the Constitution clearly understood that power is dangerous and needs to be limited by being separated -- separated not only into the three branches of the national government but also separated as between the whole national government, on the one hand, and the states and the people on the other.

Too many people today judge court decisions by whether the court is "for" or "against" this or that policy. It is not the court's job to be for or against any policy but to apply the law.

The question before the Supreme Court was not whether allowing the medicinal use of marijuana was a good policy or a bad policy. The legal question was whether Congress had the authority under the Constitution to regulate something that happened entirely within the boundaries of a given state.

For decades, judges have allowed the federal government to expand its powers by saying that it was authorized by the Constitution to regulate "interstate commerce." But how can something that happens entirely within the borders of one state be called "interstate commerce"?

Cartoon by Cox and Forkum

Back in 1942, the Supreme Court authorized the vastly expanded powers of the federal government under Franklin D. Roosevelt's administration by declaring that a man who grew food for himself on his own land was somehow "affecting" prices of goods in interstate commerce and so the federal government had a right to regulate him.

Stretching and straining the law this way means that anything the federal government wants to do can be given the magic label "interstate commerce" -- and the limits on federal power under the 10th Amendment vanish into thin air.

Judicial activists love to believe that they can apply the law in a "nuanced" way, allowing the federal government to regulate some activities that do not cross state lines but not others. The problem is that Justice Sandra Day O'Connor's nuances are different from Justice Antonin Scalia's nuances -- not only in the medical marijuana case but in numerous other cases.

Courts that go in for nuanced applications of the law can produce a lot of 5 to 4 decisions, with different coalitions of Justices voting for and against different parts of the same decision.

A much bigger and more fundamental problem is that millions of ordinary citizens, without legal training, have a hard time figuring out when they are or are not breaking the law. Nuanced courts, instead of drawing a line in the sand, spread a lot of fog across the landscape.

Justice Clarence Thomas cut through that fog in his dissent when he said that the people involved in this case "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."

Instead of going in for fashionable "nuance" talk, Justice Thomas drew a line in the sand: "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."

In short, the kinds of limitations on the power of the national government created by the Constitution are being nuanced out of existence by the courts.

Ironically, this decision was announced during the same week when Janice Rogers Brown was confirmed to the Circuit Court of Appeals. One of the complaints against her was that she had criticized the 1942 decision expanding the meaning of "interstate commerce." In other words, her position on this was the same as that of Clarence Thomas -- and both are anathema to liberals.

Thomas Sowell has published a large volume of writing. His dozen books, as well as numerous articles and essays, cover a wide range of topics, from classic economic theory to judicial activism, from civil rights to choosing the right college.

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