June 12, 2005

Gonzales v. Reich: Antonin Scalia on the Commerce Clause and federal drug law

"John the Methodist" of Locusts and Honey (the other Evangelical Libertarian blog) is upset about Justice Scalia's concurring opinion in the recent Gonzales v. Reich case. The Court ruled that the federal government has authority to prohibit medical use of marijuana, justified by the rather frightening effects of the Commerce Clause (I.8.3) when combined with the Necessary and Proper Clause (I.8.18). The two together, says the Court decision, give Congress the power to place serious restrictions on intrastate activities when these regulations are necessary to make legitimate regulation of interstate commerce efficacious. After reading the majority and Scalia's consent (I didn't look too closely at the Thomas/Rhenquist dissent; Supreme Court opinions tend to be very long), I find that I have mixed feelings about the decision. The opinion I'm leaning toward is that the Constitution does in fact support the majority's opinion, but it shouldn't.

The key idea is that the Commerce Clause states quite explicitly that Congress may regulate any commercial activities that involve more than one state (subject, of course, to the restrictions imposed by other sections of the Constitution, particularly the Bill of Rights, the prohibition on bills of attainder and ex post facto laws [I.9.3], etc.), and the Necessary and Proper Clause gives Congress authority to do what it needs to to make those laws efficacious. Scalia interprets "necessary" in a very straightforward sense, as meaning the need above, and "proper" as meaning not imposing undue restrictions on rights, state sovereignty, and so forth. The minority seems to have essentially argued that the law in question was not "proper." I might agree. At any rate, some sort of protection needs to be put in place to stop the absurdly enormous effects of the Commerce Clause as it is currently applied. However, I think that I'm forced to agree with Scalia that such protection is not already in the Constitution. Congress may prohibit interstate trafficking in marijuana, and do whatever is necessary within a state to acheive that end, subject to the Bill of Rights. This includes illegalizing possession of marijuana. It shouldn't, but it does. I think a constitutional amendment may be in order, perhaps one explicitly limiting the types of laws the government may impose in order to regulate interstate commerce, and the types of regulation of interstate commerce allowed period. We do not want a constitution that permits the government to regulate just any economic activity for just any reason, but Scalia has me convinced that our current Constitution does just that.

Posted by Kenny at June 12, 2005 5:51 PM
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Comments

But the marijuana in question was either homegrown or locally grown without crossing state lines. That excuses it from federal jurisdiction under the Commerce Clause.

Posted by: John at June 12, 2005 8:19 PM

The argument is that it is NECESSARY (as in "Necessary and Proper"), in order to enforce the Constitutionally (though perhaps not morally) legitimate prohibition on interstate trafficking of marijuana, to prohibit ownership of marijuana altogether. Perhaps that argument fails in this particular case, perhaps this is not "Necessary and Proper" for the enforcement of the prohibition, but, whatever the case, the prohibition itself shouldn't be permitted by the Constitution, and it is. Looking at this case has convinced me that the Commerce Clause, particularly taken in combination with the Necessary and Proper Clause, gives far too much power to the federal government, and libertarians should favor an amendment to specify precisely what types of activities the government is permitted to regulate.

Posted by: Kenny at June 12, 2005 11:14 PM

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