Penalizing the Commerce Clause

by P.A. Madison on March 16th, 2007

Note: I cannot believe I neglected finishing this post until now (9/13/07).

A California woman whose doctor says marijuana is the only medicine keeping her alive can face federal prosecution on drug charges, a federal appeals court ruled. The ruling Wednesday was the latest legal defeat for Angel Raich, a mother of two from Oakland suffering from scoliosis, a brain tumor, chronic nausea and other ailments who sued the federal government pre-emptively to avoid being arrested for using the drug. On her doctor’s advice, Raich eats or smokes marijuana every couple of hours to ease her pain and bolster her appetite.

How can any federal court exert such power and control over private individuals while they exercise a privilege granted under an independent and sovereign State? Quick answer is they cannot – which makes such federal rulings even more repugnant.

So far, Congress has been allowed to get away with their Controlled Substances Act under the false pretense the Commerce Clause empowers them to criminalize any activity they deem inappropriate. However, is the Commerce Clause really a power bestowed upon Congress to criminalize private activity?

James Madison said the only objective behind the power to regulate commerce between the States was to prevent a State from applying to “articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.” Same equal prohibition is placed on Congress as between the States themselves.

Why did the “regulation of commerce” have such an narrow objective? Because the words to regulate commerce had a well understood meaning before and after the revolutionary war: It meant the right to impose a protective tariff on articles of commercial trade, nothing more. What the States surrendered was the right to impose tariffs on someone else’s imports/exports.

Because the power to regulate commerce among the States is a negative declaration, Madison had no choice but to warn it was not a “power to be used for the positive purposes of the General Government.” The provision in made even more negative when you consider Congress is prohibited from imposing duties on a States own exports.

Both State law and Angel Raich trump Congress and the Supreme Court in this case because the Controlled Substances Act is not in pursuance to anything delegated to the federal government to enact or enforce, or prohibited to the States. Only silly question that remains for Congress is why are they not criminalizing through federal statutes medical marijuana use in other parts of the world? Under their corrupt and childish reading of the Commerce Clause, they can easily find the same false rational to regulate commerce within foreign Nations as they do among States, and Indian Tribes.

The States need to begin standing up and start acting as the independent sovereign States that they are, and demand a stop to federal encroachment of their sovereign rights under false and ridiculous pretense of inventive new powers. Neither liberals nor conservatives win when government is freely allowed to rule under false pretense.

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2 Responses | Leave a Comment
  1. Jane Anne Morris says:

    You might be interested in Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy, a new book of mine, about the commerce clause. More info at jane anne morris

  2. Check out an article I wrote titled, “Reviving the Constitution in Exile.” It is about the importance of Limited Government.

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