Raich and the Commerce Clause

Yes, I know I am behind the curve here. But those nice vacations cause us to miss all sorts of interesting debates in the legal world. But, though late, I wanted to give my two cents on why the activities of Raich and Monson are not interstate commerce and cannot be regulated by Congress. The Court's opinion is not worth the paper its written on.


The Commerce Clause, in pertinent part, provides that Congress has the authority "[t]o regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." At the time of the Framing, commerce was understood as "[i]ntercourse, exchange of one thing for another, interchange of anything; trade; traffick." (See Samuel Johnson's Dictionary of the English Language (3d ed. 1765)). It was not a synonym for "economic activity" or agriculture.

With inclusion of the commerce power in the Constitution, the Framers did not contemplate restrictions on cannabis or any other home-grown crop. Rather, the purpose behind the regulation of interstate commerce was creation of a free-trade zone within the United States. Alexander Hamilton predicted in Federalist No. 11 that an "unrestrained intercourse between the States themselves will advance the trade of each[] by an interchange of their respective productions." Picking up on the theme in Federalist No. 42, James Madison noted that the main purpose of the Commerce Clause "was the relief of the States which import and export through other States, from improper contributions levied on them by the latter." A union without internal trade barriers, the Framers reasoned, would permit the states to take advantage of division of labor and relieve tensions .

In response to Anti-Federalist fears that the Commerce Clause would permit the federal government to interfere with local, intrastate matters, Hamilton specifically noted in Federalist No. 17 that the Clause would have no effect on "the administration of private justice . . . , the supervision of agriculture and of other concerns of a similar nature." The cultivation of six cannabis plants for personal medicinal use would thus seem to be beyond the reach of Congress.

Leaving the world of original intent, a pure textualist approach yields the same result. As a textual matter, "agriculture" or "economic activity" cannot be read into "commerce." As Richard Epstein has observed, logic dictates that "commerce" means the same thing in relation to the several states, foreign nations, and Indians. The Clause would make no sense if we substituted the word "agriculture" for "commerce": Congress shall have the power "[t]o regulate agriculture with foreign nations, and among the several States, and with the Indian Tribes." Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. It naturally follows that Congress cannot regulate the agriculture in the several states either. But Congress can regulate the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries. This would be consistent with the Dr. Johnson's definition of commerce as intercourse and Madison's and Hamilton's emphasis on goods crossing state borders.

The understanding of commerce as trade is also evident by another mention of commerce in Article I. Under Section Nine, "[n]o Preference shall be given by any Regulation of Commerce or Revenue to Ports of one State over those of another." This provision prohibits Congress from favoring, for example, the port of Boston over the port of Charleston. Regulations may not make one port more attractive than another. The mention of "commerce" in connection with ports indicates that the Framers had in mind traffic of goods. It would make no sense to substitute agriculture for commerce: "No Preference shall be given by any Regulation of Agriculture or Revenue to the Ports of one State over those of another."

Early Supreme Court precedent supported such a limited definition of commerce. For example, in Gibbons v. Ogden (the famous steamboat case), Chief Justice John Marshall denied that Congress could regulate "that commerce . . . which is completely internal" to a state. Using state inspection laws as an example, Marshall observed that the object of such laws "is to improve the quality of articles produced by the labour of a country; to fit them for exportation or, may be, for domestic use. They act upon a subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose." To Marshall, events occurring before goods were shipped across state lines were not commerce subject to congressional regulation. (Even the nationalist Marshall could not conceive of Wickard and the far reaching powers given to Congress).

Because the cannabis at issue is grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crosses state lines, and never is sold in the stream of commerce--it is not a subject of commerce that may be regulated. It is local agriculture, which Hamilton promised us is not subject to congressional regulation.

But what about the NP Clause?

During the ratification debates, the Anti-Federalists were much afraid of the NP Clause. Centinel No. 5 put the matter thusly: "By virtue of this clause, they may controul and abrogate any and every of the laws of the state governments, on the allegations that they interfere with the execution of any of their powers." Friends of the Constitution responded that these fears were unfounded. According to Hamilton, the NP clause was not even necessary: "that the constitutional operation of the intended government would be precisely the same even if these clauses were entirely obliterated." (Federalist No. 33). If there is any danger, Hamilton continued, "it must be sought for in the specific powers, upon which the general declaration is predicated." Logically, if an end is not connected with a specific power, the government's power cannot be enlarged by the NP Clause.

Madison provides even better guidance: "Whatever meaning this clause may have, none can be admitted that would give an unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms, and the context, be limited to the means necessary to the end, and incident to the nature of the specified power." (emphasis added).

What is the nature of the enumerated power at issue: the regulation of commerce. What are the actions of Raich and Monson: agricultural and purely intrastate. Hence, the commerce power through the NP clause cannot extend to the medicinal use of pot at issue. Otherwise, we adopt the Anti-Federalist interpretation of the clause that our Friends of the Constitution assured us could not be correct.

Thoughts?