The Supreme Court is often described as the final redoubt of states’ rights.  In the last decade, we have heard much about the Court’s “New Federalism” jurisprudence.  The Court, we have been warned, is seeking to return the Constitution to the horse-and-buggy days of yesteryear.  Legal oracles such as the New York Times’ Linda Greenhouse and Harvard’s Laurence Tribe fret about a return to the enervated Articles of Confederation or “antebellum jurisprudence.”  A typical Greenhouse column leaves me with the impression that John C. Calhoun sits on the Supreme Court and that Congress is precluded from governing effectively.

This, of course, is rubbish.  And the Supreme Court proved it on June 6 with its decision in Gonzales v. Raich.  In this landmark Commerce Clause case, the Court affirmed that Congress’ power to regulate local, intrastate matters is boundless.  As Justice Sandra Day O’Connor noted in dissent, the Raich decision “threatens to sweep all productive human activity into the federal regulatory reach.”  New Federalism was but a bugbear.

The question presented in Raich was whether Congress may prohibit the medicinal use of cannabis via the federal Controlled Substances Act—even if 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.

The Raich case arose out of California, which passed its Compassionate Use Act in 1996, under which a patient or his primary caregiver may possess or cultivate cannabis solely for the personal medicinal use of the patient, as recommended by a physician.  Pursuant to state law, Angel Raich and Diane Monson used cannabis for medicinal purposes.  Raich suffers from an inoperable brain tumor, seizures, paralysis, chronic pain, life-threatening weight loss, and many other ailments.  Monson is afflicted with chronic back pain and muscle spasms caused by a degenerative disease of the spine.  Their physicians concluded that Raich’s and Monson’s pain could not be relieved with ordinary medication and prescribed marijuana.

The cannabis prescribed has been beneficial for both women.  Raich, for example, was once confined to a wheelchair; now, she is able to walk.  She has also been able to maintain her weight because of the increase in appetite triggered by the cannabis

Despite Raich’s and Monson’s compliance with California law, in 2002, federal drug-enforcement agents besieged Monson’s home.  A three-hour standoff ended in the agents confiscating and destroying all six of her cannabis plants.  The federal Controlled Substances Act trumped the state Compassionate Use Act.

Denying the constitutionality of the federal law as applied to them, Raich and Monson headed to the courts.  A U.S. district court denied relief, but the Ninth Circuit Court of Appeals reversed, holding that the women demonstrated a strong likelihood that the Controlled Substances Act as applied to them was an unconstitutional exercise of federal power.  Federal officials were prohibited by an injunction from interfering with the women’s use of cannabis for medicinal purposes.  The federal government then appealed to the Supreme Court.

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.”  By “commerce,” the Framers meant “[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 the inclusion of the Commerce Clause in the Constitution, the Framers did not contemplate restrictions on cannabis or any other homegrown crop.  Rather, the purpose behind the regulation of interstate commerce was the creation of a free-trade zone within the United States.  Alexander Hamilton predicted, in Federalist 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 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 Antifederalist fears that the Commerce Clause would permit the federal government to interfere with local, intrastate matters, Hamilton specifically noted in Federalist 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.”  Thus, the cultivation of six cannabis plants for personal medicinal use would seem to be beyond the reach of Congress.

Leaving the world of original intent, a pure textualist approach yields the same result.  “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 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 made clear by another mention of commerce in Article I.  Under Section 9, “[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.  The mention of “commerce” in connection with ports indicates that the Framers had in mind the traffic of goods.  Here, as well, 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 did not qualify as commerce, subject to congressional regulation.

Over time, various Court decisions expanded the definition of commerce.  But the genie did not escape the bottle until 1942, when the Supreme Court considered the constitutionality of FDR’s Agricultural Adjustment Act.  In Wickard v. Filburn, the Court was presented with the question of whether Congress could regulate a farmer’s growing of wheat intended solely for consumption on his farm.  A local activity, explained the Court, can “be reached by Congress if it exerts a substantial economic effect on interstate commerce.”  Although the 11.9 acres of wheat in question did not seem to affect interstate commerce, the Court reasoned that the farmer’s wheat, “taken together with that of many others similarly situated, is far from trivial.”  Because the growing of wheat for home consumption by hundreds or thousands of farmers could affect the demand and price of wheat, the acts of a solitary bucolic soul fall under Congress’ power to regulate interstate commerce.

Not surprisingly, the Court’s opinion in Raich relied heavily on Wickard.  Like the growing of wheat for personal consumption, Justice John Paul Stevens noted for the Raich majority, “the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.”  He continued, “[P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”  The fact that some purely intrastate activity is ensnared by the Controlled Substances Act was “of no moment” to Justice Stevens or the federal government.  Raich’s and Monson’s activities fell within the commerce power.

The most troubling aspect of the Raich decision is the expansive definition of “economic activity” used by Justice Stevens.  In previous decisions that somewhat limited Congress’ power under the Commerce Clause, the Court noted that the cumulative-effects analysis of Wickard is only applied if the activity Congress seeks to reach is “economic.”  The Raich majority defined economics as “the production, distribution, and consumption of commodities.”  According to the Raich decision, the growing of plants for use at home is economic activity, because it involves the production and consumption of a “commodity.”  Under this reasoning, the growing of a single tomato plant in a container on an apartment balcony is economic activity and, thus, may be regulated by Congress.  Congress could even prohibit a child from painting a picture to hang on the wall in his own room because this involves the production of a commodity.  Moreover, if all children created their own art, this could substantially affect the interstate market for art.

Justice Clarence Thomas, in his dissenting opinion, correctly summed up the result of Raich: “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 the last ten years, the Supreme Court has attempted to impose some modest limits on Congress’ use of the Commerce Clause.  In United States v. Lopez (1995), the Court held that possession of a firearm in school zones does not affect the national economy; therefore, Congress cannot ban firearms in these areas using the Commerce Clause.  In United States v. Morrison (2000), the Court rejected the government’s claim that crimes of violence motivated by “gender” affect interstate commerce in such a way as to permit the creation of a federal, private right of action.  While these cases somewhat limited congressional power, both decisions left Wickard intact.  Through Raich, Wickard now promises to eliminate the reserved powers of the states and to subject the people to more government intrusions into their daily existence.  The enumerated powers in Article I are rendered superfluous in light of the Wickard analysis.

Raich also promises to undo the minor restrictions of Lopez and Morrison.  Under the reasoning of the majority, had the regulation of local activity at issue in those cases been essential to a larger regulation of economic activity, then the Lopez and Morrison results would have been different.  In other words, so long as Congress does not isolate local activity and, instead, includes it in a comprehensive regulation of the economy, the effects on the local matter will not be fatal to the statute’s constitutionality.

Although sweeping, Raich is not the executioner of the New Federalism; it never existed in the first place.  Wickard has been the rule since 1942, and it was never called into doubt by Lopez or Morrison.  Justice Thomas, who concurred in the result of Lopez in 1995, recognized that retention of the substantial-effects test gave Congress a general “‘police power’ over all aspects of American life.”  Raich merely affirms the breadth of this power and renders it without meaningful limitation.

The myth of our ultraconservative Supreme Court and its alleged evisceration of federal power can now be interred—right beside the old Constitution of enumerated powers.