Two eminent scholars, Thomas Woods, Jr. and Kevin Gutzman argue the Constitution isdead not just dying, and they have identified a dozen ways—the dirty dozen—in which all three branches of the federal government have removed restraining elements from federal officials so they can do whatever they want! Number Nine involves abuse of the Commerce Clause. Americans may be surprised to learn they have a constitutional duty, according to interpretation by federal courts and the Supreme Court, to suffer. The duty to suffer is for the sake of commerce.
To digress a moment, it always bothered me that the government used tax laws, in particular tax evasion to target and convict criminals and punish them for other crimes the government could not prove. On an existential and practical level, it may serve the greater good and public welfare and indeed be "just," to put away the likes of Al Capone by expedient means. But it is easy from our vantage point to see how a constitutionally unrestrained government may begin to turn any citizen it wants into a criminal. The process has already begun in fact, and the nature of power makes it entirely likely whenever the government should feel politically threatened. Motivationally, it was not the heinous crimes committed by the mafia that mattered to prosecution, so much as the displacement of government authority and its control over the purse.
The same bureaucratic and political motive gives rise to officially sanctioned disinformation, as well as to state-sponsored violence. We may have entered a period beginning in the 1990s where, even absent the admitted Cold War anomalies, power in the central government had grown so great and restraints upon it so ineffectual, that transparency in government operations as well as the trustworthiness of what the government itself was reporting, were compromised and in grave doubt. At such a stage as we are still in, only a severe populist reaction causing political realignment and large-scale replacement of officials, may jolt the system sufficiently to make it amenable to reform and efforts at restoration.
At the Constitutional Convention and in the sixty-three times the word appears in the Federalist Papers, "commerce" meant trade. Foreign trade was distinguished from trade or commerce among the several states. The Constitution's Commerce Clause found in Article I, Section 8, Clause 3 grants Congress the power to "regulate Commerce [trade] with foreign Nations, and among the several States, and with the Indian Tribes."Commerce among the several states referred to commerce between one state and another, not commerce inside one state (intrastate) that may be said to have an extenuating effect elsewhere. The point of the Clause was quite frankly to keep one state from setting up and imposing tariffs on goods coming in from another state. The provision is thus largely responsible for the Constitution having enabled setting up a giant free-trade zone throughout the United States, i.e., by preventing states from obstructing the free flow of commerce (So far, so good).
By the twentieth century, however, precedents were compounded to such an extent as to completely undo a distinction between intra and interstate commerce. Wickard v. Filburn(1942) thus overlay Gibbons v. Ogden (1824), and now a farmer growing wheat on his own land was subject to federal regulation, because while it wasn't interstate commerce per se, it nonetheless affected interstate commerce. Had he not grown his own wheat, he might have purchased it from another state! His abstention from purchasing, his evasion if you will, brought private activity conducted entirely within a sovereign state under federal jurisdiction.
Given the precedent in Wickard, it was an easy hop-skip-and-jump in the case of Gonzales v. Raich (2004) for the Supreme Court to say flatly, the federal government may now ban the use of substances grown and consumed inside a single state—whether or not they are ever bought or sold, and whether or not there is even a market. The reason is such a substance might "leak" into interstate commerce and affect the overall economy. The suppositional reasoning is far beyond anything envisioned by Founders' Original Intent regarding the Constitution or the Commerce Clause. Indeed, any and everything affects the economy—particularly if one judges effect upon a hypothetical abstention or the leakage of something that isn't even done. One wonders if the hypothetical extends to evasion of taxes on supposed commerce that never occurs, or the commission of crimes you just happened to think about.
Specifically dealing with the question of medical marijuana, though legal in California, the Court favored federal raids and seizure of private property based on the rationale that a leakage for recreational use outside the State of California could disrupt the federal drug prohibition policy, thus making the government's larger regulatory scheme less effective.In one fell swoop the Court set a new enlarged precedent, that federal regulatory regimes trump anything taking place inside states. Not only does the federal government control anything that affects commerce, it now controls anything that affects a regulatory regime.Commerce had morphed a long time ago from interstate to intrastate, but now it involves anything the government says it does. Anything within a state affecting or supposedly affecting a larger federal regulatory scheme is brought within federal control. Moreover, if something is legal in a state today, it can be disallowed whenever the feds want—rendered illegal, simply by erecting a new federal regulatory scheme.
Three states that outlaw medical marijuana (Alabama, Louisiana and Mississippi) filed an amicus brief in protest to the decision in Gonzales v. Raich. Alabama's brief on behalf of the three states reads in part that the point is not whether medical marijuana is good or bad or profoundly misguided—rather, "The point is that, as a sovereign member of the federal union, California is entitled to make for itself the tough policy choices that affect its citizens." The federal government may not "displace the States from their traditional role as the enforcers of local criminal law and assume the States' police power to provide for the health, safety, welfare, and morals of their citizens." In point of fact, the federal government says it can. Commerce not only makes us duty bound to suffer as it apparently does for medical marijuana users in California, it makes everyone slave to the central government in Washington, albeit for the greater good of macro-economy as determined by the federal government on your behalf. They've done such a good job too.
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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article based on the book by Woods and Gutzman, Who Killed the Constitution?(2008). Email: wes@wesriddle.com.
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