Saying Buzz Off to Original Intent-A Libertarian View

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The 2004/2005 session of the U.S. Supreme Court was marred by two poorly reasoned decisions coming at its end. One involved giving the federal government a virtual blank check to meddle in the businesses of the States and the People of this country so that the war on marijuana would not be undermined. The other gave a new and expanded meaning to the words “public purpose” so that local governments could seize private property and hand it over to other more wealthy private owners. This column will focus on the first issue.

Raich v. Ashcroft was a case brought to the high court from the 9th Circuit Court of Appeals. It involved two women who grew their own marijuana for medicinal purposes in compliance with California law. The issue in question was whether the commerce clause of the US Constitution gave the Federal Congress power to prohibit such activity. If not, then the Tenth Amendment that indicates that all powers not specifically designated as belonging to the Federal Government are reserved to the States and the People respectively would be the operative law.


There was reason for optimism among pro-medical marijuana groups going in. This group of justices had been a good friend of the Tenth Amendment in a number of prior cases. There is a core group of solidly conservative justices who do not believe in the limitless power of Federal authority that many liberals seem to subscribe to. On the Feds side they had a precedent in the case of Wickward v. Filburn. This case was decided in 1942 by a liberal court consisting primarily of Roosevelt appointees. It gave vast new powers to the Federal authority at a time when America was at war. Under these circumstances one might understand the poorly reasoned decision that the court made in Wickard. However, precedence is not all holy. Many of the worst decisions made by the Supreme Court have later been overturned. The Raich case gave the Court the opportunity to overturn the Wickard case and restore some of the balance of power that the founders of our Republic envisioned when the Constitution was originally drafted.

Sadly the Court did not do the correct thing on Raich. Most people now know that three conservatives were out voted by a liberal/centrist pro-big government majority. This majority was made larger by the betrayal of Justice Antonin Scalia. Justice Scalia who stayed loyal to principal on the other case I mentioned above did not seem to have much interest in defending the points he has made a career of defending when medical marijuana was the topic.

A couple of years ago Justice Scalia appeared in Hawaii at a forum held at the Japanese Cultural Center. He described his philosophical position clearly as an “oringinalist”. By that he meant one who sought to understand the original intent of the parties who drafted the Constitution as the correct guide for its application. He also decried the habits of judges to push themselves into political questions that were more properly the issues of legislative bodies. You’d think that the clear vote of the people of California to allow for medical marijuana use would carry some weight with him. It didn’t.

To an oringinalist, like Scalia, the operative question is how people like Thomas Jefferson, and George Washington viewed the commerce clause. Did they wish to create a Federal authority that could come on to their land and tell them what to plant and how much and when and what they could charge for it or if they could sell it at all? Not bloody likely! The commerce clause says that Congress has the power to “regulate Commerce with foreign Nations, and among the States, and with the Indian tribes.” It’s clear purpose and intent was to create a uniform trade policy on tariffs and regulations relating to foreign trade and to prevent States from setting up trade barriers of their own both in regards to foreign and to interstate commercial activity. The allegation made by the Court in the Wickard decision that this implies an authority to control the national supply of wheat produced is an unfounded exaggeration of the original intent of the commerce clause. It should have been overturned.

The commerce clause has become a big stick used by the Federal Government to meddle in the lives of people all across this country. They have gone from regulation of goods crossing state lines to regulation of every potential act in the production of such goods. This gives them the excuse to govern labor relations in every business in the country that could in even the remotest possible twisting of logic effect interstate commerce. That to the Congress means everyone everywhere. If the founders had actually intended Congress to have such authority they could clearly have given it by writing a commerce clause that simply said “regulate all Commerce within the United States and with foreign Nations and the Indian tribes;”. They choose very clearly not to grant this amount of power and it’s about time our Supreme Court woke up to that fact.

”’Tracy Ryan, chair of the Libertarian Party of Hawaii, can be reached by email at:”’

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