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Federalism
Introduction
The story of the Articles of Confederation is well known. Simply put, they didn’t work.
Not only was there no provision for a chief executive, trade barriers erected by some states against others threatened to kill the new nation in its cradle.
The Constitution of the United States of America was designed to fix those problems, and others, by creating a federal union.
The preamble states the Constitution’s goal as being to “form a more perfect Union.”[i]
Article I provides that there shall be state-based elections for members of the federal congress, that “The Congress shall have Power To . . . regulate Commerce . . . among the several States,”[ii] and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the [federal] Government of the United States, or in any Department or Officer thereof.”
Article II provides for state-appointed electors to choose the president and vice president of the United States.
Article IV provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” that alleged criminals can be extradited from one state to another, that new states may be admitted “into this Union,” and that “The United States [the federal government] shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and . . . domestic violence.”
Article V provides for state participation in amendment of the federal Constitution.
Article VI provides that “This Constitution, and the Laws of the United States [the federal government] which shall be made in Pursuance thereof; and all Treaties . . . shall be the supreme Law of the Land[iii]; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Article VII provides for state ratification of the federal Constitution.
And lest there have been any question that the new nation was a federal republic consisting of a national government made up of constituent states, each of which possessed its own powers, the Tenth Amendment provides that “The powers not delegated to the United States [the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”
What are we to make of all these provisions?
As I wrote in The Supreme Court Opinions of Clarence Thomas (1991 – 2006): A Conservative's Perspective:
The Constitution of the United (i.e., combined into one federal
Union) States expressly affirms the existence of reserved powers
in the states and in the people respectively. Just as the first nine
amendments are an assurance that individual rights were to be
protected from the newly formed federal government, the Tenth
Amendment is a guarantee that states and their citizens will retain
their powers as against the national government . . . —except as to
powers expressly granted in the Constitution to the federal
government, or expressly denied to the states.[iv]
Federalism matters.
Former Attorney General Edwin Meese III has written that “[t]he institutional design [of the Constitution] was to divide sovereignty between two different levels of political entities, the nation and the states. This would prevent an unhealthy concentration of power in a single government. It would provide, as Madison said in The Federalist No. 51, a ‘double security . . . to the rights of the people.’ Federalism, along with separation of powers, the Framers thought, would be the basic principled matrix of American constitutional liberty. ‘The different governments,’ Madison concluded, ‘will controul each other; at the same time that each will be controlled by itself’.”
Let’s see what happened.
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[ii] Emphasis added. All emphases of the word “state” in quotations from the Constitution of the United States have been added.
[iv] An example of a power expressly denied to the states is Art, I, Sec. 10, Par. 1, which provides that “No state shall . . . pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts . . . .” One of the “Fifty Worst Cases,” discussed in Chapter 18, involves a state impairment of contract.
M'Culloch v. Maryland[i]:
The Necessary and Proper Clause and the Jefferson-Hamilton Duel
It is believed by some constitutional law scholars that the most important opinion of the scores written by John Marshall during his more than thirty years as Chief Justice was M'Culloch v. Maryland,[ii] the first case to rule on the meaning of the Necessary and Proper Clause.
At the Constitutional Convention of 1787, the delegates were faced with the task of providing the government-to-be with specifically enumerated delegated powers. As to those of Congress, Article I, Section 8, lists dozens. For example, Clause 8 delegates to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
All well and good, but how was Congress supposed to accomplish that? Indeed, how was Congress supposed to organize the new government and implement the many tasks delegated to it?
The question was of crucial importance because under the earlier, no longer acceptable, Articles of Confederation, it had been provided that “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[iii]
The Convention’s Committee on Detail considered the question. One idea was simply to vest Congress with the power to “organize the government.” Another was what became the Necessary and Proper Clause. Congress was empowered:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the [federal] Government of the United States, or in any Department or Officer thereof.
These 39 words made a lot of people very unhappy. They still do.
In the heated controversy over ratification of the Constitution, there was vociferous opposition to the clause, mainly because it was seen as negating the principle of enumerated powers which conceptually underlay the Constitution generally and Article I, Section 8 in particular.[iv]
Certainly, the Necessary and Proper Clause was needed to enable the new government to get itself organized. That’s why among the first things the first Congress did was to establish the structure and staffing of the federal judicial system.
There were those Federalists, however, who read the Necessary and Proper Clause much more broadly, among them co-author of the pro-ratification essays called The Federalist, Alexander Hamilton.
Accordingly, as Secretary of the Treasury, in 1790 Hamilton lobbied Congress to charter a national bank, concededly not an enumerated power of Congress under Article I, Section 8, of the Constitution, nor indisputably a “let’s get organized” power such as building post offices. Hamilton wanted the bank for the purpose of dealing with the nation’s monetary and economic systems.[v]
Hamilton prevailed, the bank was chartered, but its charter lapsed about twenty years later and was not renewed.
However, in 1816 Congress chartered a second Bank of the United States, it established branches in several states, and thus the groundwork was laid for one of the fifty worst Supreme Court decisions, M'Culloch v. Maryland.
In 1818, the State of Maryland enacted a law that taxed the notes of all banks that were not chartered by the state—i.e., the second Bank of the United States. The Maryland branch refused to pay the tax, the state sued, and eventually the case ended up in the Supreme Court of the United States.
Ostensibly about the tax, the threshold issue for the Court was actually whether the legislation creating the bank was constitutional. That in turn depended on whether, under Article I, Section 8, of the Constitution Congress possessed the power to charter the bank. Indeed, the second paragraph of Chief Justice Marshall’s opinion begins: “The first question made in the cause is--has congress power to incorporate a bank?
Marshall began his opinion by noting that there was a legislative precedent for the bank—the first Bank of the United States—though of course that said nothing about the constitutionality of the second bank. Next, after some irrelevant musings about the Constitution’s origins, Marshall stated that everyone agreed the government is “one of enumerated powers.” If a reader was unaware that Marshall believed in a strong central government, it might have seemed that the bank legislation was on its way to being held unconstitutional. But that was not to be.
After considerable discursiveness, Marshall finally got to the Necessary and Proper Clause which, after all, was what the case was really about. Focusing on the word “necessary,” Marshall opined that:
If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. * * * The word ‘necessary’ . . . has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. [vi]
Marshall followed this linguistic analysis with a bit of mind reading, attributing to the Framers an intent to provide in the Necessary and Proper Clause a roaming commission in Congress to legislate on virtually any subject it chose. Although paying lip service to the principle that “the powers of the government are limited, and that its limits are not to be transcended,” Marshall issued one statement that more than any other synthesized his views of the Necessary and Proper Clause:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.[vii]
There is much to criticize in John Marshall’s opinion for the Court in M'Culloch v. Maryland: His overt allegiance to federalist principles, his rambling detours into constitutional history, his use of non sequiturs, his begging the question, his tortured linguistic parsing of “necessary,” his failure to satisfactorily come to grips with the Clause’s other requirement, “proper.” But the worst aspect of M'Culloch is Marshall’s slick reversal of the Necessary and Proper Clause’s meaning.
Article I, Section 8, contains the bulk of Congress’s delegated, limited powers. The Necessary and Proper Clause allows Congress to implement those powers. Yet—in construing what he might have more appropriately called the “Convenient, or Useful, or Essential to Another” Clause—Marshall turned the tables. No longer was the scope of Congress’s power what was expressly delegated to Congress in Article I, Section 8—via the people, to their states, to the national government. Now, the virtually, if not actually, unlimited scope of that power was to be whatever was “not prohibited” to Congress.
And what does the Constitution expressly prohibit to Congress?
Importation of slaves, and a tax on them more than $10 each. Enactment of bills of attainder and ex post facto laws. Certain kinds of capitation, direct, and export taxes. Port preferences and withdrawal of money from the treasury without appropriate legislative approval. And the granting of titles of nobility.[viii]
Thanks to Marshall’s McCulloch opinion in 1819, virtually every conceivable subject has been grist for Congress’s interstate commerce mill—with severe consequences for both republican institutions and individual rights.
As we shall see, other of "the fifty of the worst decisions of the Supreme Court" have relied heavily on M'Culloch to justify their approval of close to unlimited Congressional power—especially under the Interstate Commerce Clause.
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[i] 4 Wheaton 316 (1819). This citation refers to the fourth volume of the Supreme Court reports edited by a gentleman named Wheaton. The number following his name refers to the page on which the case begins. Later in the eighteenth century, the official reports of the decisions of the Supreme Court of the United States became designated “U.S.” For example, 310 U.S. 220. The date in parenthesis refers to the year the case was decided. More modern cases contain a “S.Ct.” reference identifying an unofficial edition of Supreme Court opinions published by West Publishing Company. As with the official United States Reports, the first number refers to the volume, and the second to the page. A few citations in this book lack a “U.S.” reference because when this book was published the official report of the case was not yet available.
[ii] See, for example, Nowak and Rotunda, Constitutional Law (seventh edition) 9, (henceforth, “Nowak and Rotunda”) citing “James Bradley Thayer, John Marshall, at 68 (1901) as reprinted in Thayer, Holmes & Frankfurter, John Marshall (1967, Philip Kurland ed.); Felix Frankfurter, John Marshall and the Judicial Function, 69 Harv.L.Rev. 217, 219 (1955).”
[iii] Emphasis added. In arguing for ratification of the Constitution, James Madison noted in Federalist No. 44 that the term, and the idea of, “expressly” was too constraining on a legislative body.
[iv] Referring to federal supremacy and the Necessary and Proper Clause, Hamilton declaimed that “These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane . . . .”(Alexander Hamilton, Federalist No. 33.)
[v] Hamilton’s bill passed Congress on February 8, 1791, but President Washington had reservations about its constitutionality. He asked Hamilton, Jefferson, and Randolph to provide written opinions. Hamilton, of course, was for the bank. Jefferson was opposed, as was Randolph.
Predictably, Hamilton argued that “every power vested in a government is in its nature sovereign, and includes, by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral or not contrary to the essential ends of political society. . . .” ( Emphasis in original.) (Henry Steele Commager, Documents of American History, 156.)
Jefferson’s opposition is essentialized in this passage from his opinion: “I consider the foundation of the Constitution as laid on this ground—that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people . . . . To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” (Emphasis in original.) (Henry Steele Commager, Documents of American History, 156.)
159.)
[viii] Article I, Section 9.
Gibbons v. Ogden[i]:
The Interstate Commerce Clause and Robert Fulton’s Steamboat
Some scholars believe that today John Marshall’s opinion in Gibbons ranks as one of the most important in history because the Court’s decision laid the basis for later Supreme Court Justices to allow federal power to deal with national social and economic problems.”[ii]
Others believe that in making expansive use of the Interstate Commerce Clause, Congress, abetted by the Supreme Court, has often gone far beyond the intent of the Founders and, in the process, dealt a severe blow to the core constitutional principle of federalism.[iii] That is my position.
Long before the days of computers and household names like Bill Gates, American schoolchildren learned about earlier heroes of technology and business like Robert Fulton and his steamboat. What is much less known, however, is that Fulton was involved in a Supreme Court case that profoundly affected the federalism balance that had been so carefully crafted by the Founders.
To encourage investment in and development of steamboat technology, which would be a boon to commerce, the New York State Legislature in the early 1800s granted a monopoly to operate those vessels in the state’s waters. The recipients of that exclusive right were Robert Livingston and Robert Fulton.
In turn, Livingston and Fulton granted a license to one Aaron Ogden, allowing him to run a ferry across the Hudson River between New York and New Jersey.
So far so good, and no need for either Congress or the Supreme Court to be involved. Not yet, at least.
However, a federal law that had been enacted in 1793[iv] provided for licensing of “vessels to be employed in the coasting trade,” and pursuant to that law one Thomas Gibbons (a former partner of Ogden) started a steamboat service in competition with Ogden’s.
So Ogden went to court in New York and obtained an injunction prohibiting Gibbons from operating his ferries in New York waters.
The case eventually reached John Marshall’s Supreme Court, where the ostensible question was whether the federal “coastal trading” law trumped the New York statute granting the monopoly to Livingston and Fulton.
Actually, the more fundamental question was whether, under the Constitution’s Interstate Commerce Clause, Congress possessed the power to legislate on the subject of steamboat service between two states—to regulate, as commerce, what was in reality navigation.
In light of Marshall’s opinion five years earlier in M'Culloch v. Maryland, the outcome in Gibbons was not hard to predict. Once again, the Chief Justice acknowledged that the Constitution “contains an enumeration of powers expressly granted by the people to their government,” and that there were some who argued “that these powers should be construed strictly.” Although Marshall coyly asked “why ought they to be so construed,” his question was rhetorical and by the end of his Gibbons opinion the Chief Justice had gotten where he wanted to be.
Marshall began by noting that since nothing in the Constitution's text required “strict construction,” the Interstate Commerce Clause should be
construed in accordance with “the objects for which it was given.” Said Marshall,
The subject to be regulated is commerce; and [to] ascertain the
extent of the power, it becomes necessary to settle the meaning of
the word. The counsel for [Ogden] would limit it to traffic, to
buying and selling, or the interchange of commodities, and do not
admit that it comprehends navigation. * * * Commerce,
undoubtedly, is traffic, but it is something more—it is intercourse.[v]
Not content with such a broad reading of a clause that expressly granted Congress the power to regulate only interstate commerce, Marshall added that Congress’s commerce power is:
the power to regulate; that is, to prescribe the rule by which
commerce is to be governed. This power, like all others vested
in congress, is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than are
prescribed in the constitution.[vi]
In other words, just as Marshall had done in M'Culloch with his “not prohibited” reading of the Necessary and Proper Clause, Marshall turned upside down the Founders’ express delegation of the power to regulate only “commerce.”.
Apparently, in Marshalls view, under the Interstate Commerce Clause Congress could regulate anything except what the Constitution expressly said the federal legislature could not regulate.
The Harvard Law School professor and later Associate Justice of the Supreme Court, Felix Frankfurter, wrote of Marshall’s opinion in Gibbons that the Chief Justice:
not merely rejected the Tenth Amendment as an active principle
of limitation; he countered with his famous characterization of the
powers of Congress, and of the commerce power in particular, as
the possession of the unqualified authority of a unitary sovereign.
He threw the full weight of his authority against the idea that, apart
from specific restrictions in the Constitution, the very existence of
the states operates as such a limitation. . . . [vii]
Perhaps as a sop to those who believed the Tenth Amendment had been inserted into the Bill of Rights for a good reason, Marshall, according to two eminent constitutional law scholars:
did state that some “internal” commerce of a state would be beyond the power of Congress to regulate.[viii] According to Marshall’s opinion for the Court, the only commercial activities that were immune from federal power, and reserved for state or local regulation, were those “which are completely within a State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” Marshall thus described the “internal
commerce of a state” as beyond the reach of federal power but
simultaneously created a standard under which few commercial
activities could be found to meet the definition of internal
commerce.”[ix]
The federal juggernaut had begun to roll.
Indeed, as we shall see, even non-commercial commerce—even intrastate commerce— would eventually become subject to the exercise of federal legislative power.
[i] 22 U.S. (9 Wheat.) 1 (1824).
[ii] Nowak and Rotunda, 165-66.
[iii] See, for example, United States v. Dewitt, 76U.S. (Wall.) 41 (1870).
[vii] Nowak and Rotunda, 166.
[ix] Nowak and Rotunda, 166.
Wickard v. Filburn[i]:
Intra-state commerce and Home Grown Wheat
The Supreme Court’s opinion in this case could just as easily have been written by John Marshall rather than by Justice Robert Jackson. In a sense it was, because Jackson’s opinion in Wickard rests squarely on Marshall’s in M'Culloch v. Maryland and Gibbons v. Ogden.
Wickard v. Filburn had its genesis in FDR’s “New Deal” legislation. In 1938, the Agriculture Adjustment Act was passed. One reason for its enactment was to avoid certain food surpluses and shortages through government control of the amount of production, and thus to support the price of farm commodities—an anti-free market, command economy scheme par excellence.
Every year, the federal bureaucrats used their crystal balls to determine how much wheat would be needed the next year. They then set production quotas.
Filburn was a small Ohio dairy and poultry farmer who also raised a small amount of winter wheat. Some he sold locally, some he fed to his own animals, some he milled into flour for his own consumption, and the rest he kept for the following year’s seeding on his own land.
In 1940, based on the act, its regulations, and what the clairvoyant bureaucrats predicted, the government told Filburn that his 1941 wheat crop could occupy no more than eleven acres, with a harvest yield of no more than about twenty bushels per acre.
Recklessly throwing caution to the wind and willing to risk violating federal law, Filburn sowed and harvested an extra twelve acres. When the government assessed a penalty for his “farm marketing excess,” he sued.
Eventually, the case reached the Supreme Court where Filburn argued, essentially, that the wheat marketing quota provisions of the Act were unconstitutional because they didn’t constitute regulation of interstate commerce.
Filburn conceded that Article I, Section 8, of the federal Constitution vested Congress with the power to regulate interstate commerce, and that recently the Court had upheld a federal statute regulating the local production of goods simply because later they would enter the stream of interstate commerce.
But, he argued, the Agricultural Adjustment Act was quite different. It went beyond other federal laws, extending the reach of the federal Interstate Commerce Clause power to local farm production intended wholly for local consumption, in no way later intended for interstate commerce.
Filburn wanted to know how Congress could regulate wheat which would never leave his farm. A fair question. One that might have given even the great John Marshall pause. But Justice Jackson was up to the task.
Although in Jackson’s opinion for the Court he expressly acknowledged that the Agriculture Adjustment Act “extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm,”[ii] his concession failed to help farmer Filburn.
The core of Jackson’s opinion began by acknowledging that Filburn claimed the wheat quota:
is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most “indirect.” In answer [said Jackson] the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a “necessary and proper” implementation of the power of Congress over interstate commerce.
Although Filburn’s “production and consumption” argument was not one to be taken lightly, instead of confronting it Jackson simply dismissed the contention. “We believe,” Jackson wrote, “that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.”
Beware! Once the Supreme Court says explicitly that cases are “not to be decided by reference to any formula,” and implies that the objective meaning of words must yield to “actual effects,” it’s obvious that the justices are going to extend the law. And that’s exactly where Jackson was going.
As a predicate, Jackson observed that:
[t]he wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.
Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argentina, Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed in part at least to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government.[iii]
Even though the cat was now out of the bag as to the purpose of the quotas, and even though Marshall in Gibbons had provided plenty of latitude for the commerce part of the Interstate Commerce Clause, still, Jackson had to find an interstate peg to hang the wheat quotas on. Necessity, once again, proved to be the mother of invention. Jackson wrote:
One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions.[iv]
An Associate Justice of the Supreme Court of the United States was claiming that home-grown, home-consumed wheat, never moving off Filburn’s farm, let alone beyond the State of Ohio, would not merely have an “influence on price and market conditions,” but a “substantial” one.
In what way?
Here was Jackson’s explanation, no less for a unanimous Supreme Court:
This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.
There is so much revealed in these four sentences, that emphasizing certain individual words and phrases is inadequate to explain all of it. To begin with, by Filburn’s wheat “overhanging” the market Jackson meant that the farmer’s few paltry acres of the grain were part of the worldwide universe of wheat from such places as neighboring states, Canada, Ukraine, even Australia. By itself, this speculation was meaningless.
But Jackson built on it, with a string of yet more speculative “maybes.” With Filburn sitting on his drop-in-the bucket supply of home-grown wheat, prices maybe rise. Ignoring his own uses for the wheat, maybe Filburn is induced to sell it into the market. Maybe Filburn’s wheat “checks” price increases, but then maybe not.
Apparently, Jackson realized that these “maybes” were hardly the bedrock upon which the Court could ground a broad, far-reaching interpretation of the Interstate Commerce Clause’s regulation of purely intrastate activity.
Accordingly, he conceded that Filburn’s wheat might never lease his farm. In that case, according to Jackson, Filburn himself would consume it—and when he does, he won’t be buying wheat from Kansas (let alone Australia). Kansas is, as is well known, another state—which brings Jackson closer to interstate commerce. Indeed, Jackson said that “[h]ome-grown wheat in this sense competes with wheat in commerce.” An interesting idea: not buying something interstate in some way is related to interstate commerce.
Jackson’s sophistry impaled Filburn on the horns of a dilemma he couldn’t escape.
If he sold his wheat, it would affect interstate commerce.
If he consumed it, he wouldn’t purchase wheat that was in interstate commerce, either because that wheat actually was, or because it, too, “overhung” the market.
No matter what Filburn did, according to the Supreme Court his wheat had a sufficient connection with interstate commerce to justify the congressional Agriculture Adjustment Act.
And what early precedents did Jackson rely on to justify converting purely intrastate activity into interstate commerce, and thus justify Congress regulating the local production of agricultural products? Surprise: M'Colluch v. Maryland and Gibbons v. Ogden.
If these two cases could justify congressional legislation under the Interstate Commerce Clause to reach Filburn’s wheat, the clause could be, and has been, stretched to reach virtually any activity.
Unfortunately, Wickard is only one modern example of Congress’s use of the Interstate Commerce Clause to control the private activities of some people on behalf of others deemed by the legislature to need government help. From the time of Wickard to the present day, the Interstate Commerce Clause has been used by Congress and the Supreme Court to justify government control of transportation, communication, investments, banking, labor relations, power, energy, trade, food, drugs, and much more.[v]
Until 1964, however, Congress and the Supreme Court had not teamed up to employ the Interstate Commerce Clause as an engine of moral righteousness.
[i] 317 U.S. 111, 63 S.Ct. 82 (1942).
[v] Understandably, it is this aspect of Willard v. Filburn—concerning the scope and application of federal interstate commerce power—which has received the most notoriety in constitutional law circles. Yet of equal, and philosophically more, importance is the unusually explicit collectivist-statist premise upon which the Agricultural Adjustment Act and the Supreme Court’s decision in Wickard rests.
Filburn argued that by forcing him, and others similarly situated, into the market to purchase small amounts of needed wheat they were able to grow themselves, the government was hurting them in order to benefit others—consumers and regular wheat farmers. He wanted to know why small dairy/poultry farmers like him should be penalized to keep wheat prices high for regular wheat farmers—why his interest in growing a little wheat for his own purposes should be subordinated to the perceived need of wheat farmers to obtain a government-supported price higher than the free market would provide them. The answer he received was that “[i]t is the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others.” And it was pursuant to an indefensible interpretation of the Interstate Commerce Clause that the Court justified Congress’s socioeconomic allocation of those benefits and costs.
Heart of Atlanta Motel, Inc v. United States.[i]/Katzenbach v. McClung[ii]
_____________Interstate commerce and “morality”_______________
The backdrop for these two cases, presenting the same constitutional issue but in different factual contexts, consists of Congress’s consistent abuse of the Interstate Commerce Clause, abetted by the Supreme Court in the cases discussed above and in many others.
In all of those cases, the often explicit and always implicit question was how much further could the Interstate Commerce Clause be stretched to reach private conduct that was properly the concern, if at all, of the states.
Was there no conduct that Congress could foster or deter on the rationale that somehow what was happening, or not happening, “affected” interstate commerce?
The two cases discussed here provide the sad answer.
The Heart of Atlanta Motel—a privately owned, local establishment—had 216 rooms available to transient guests. Accessible to two interstate highways, the motel solicited business through national advertising and some fifty billboards and highway signs throughout Georgia. The motel served conventioneers from outside Georgia, and about seventy-five percent of its registered guests were from outside the state. The Heart of Atlanta Motel, however, was actually inside the State of Georgia.
Ollie’s Barbecue was a family-owned restaurant in Birmingham, Alabama, catering to a family and white-collar trade and specializing in barbecued meats and homemade pies. It had a seating capacity of 220 and was located on an Alabama state highway eleven blocks from an interstate. Bus stations and a railroad were not far away. Ollie’s Barbecue purchased about half of its food from a local supplier who, in turn, procured it from outside of Alabama. Ollie’s Barbeque, however, was inside the State of Alabama.
Both Heart of Atlanta Motel and Ollie’s Barbecue had inflexible policies against accommodating Negroes, the establishments’ owners believing that since the businesses belonged to them, they could indulge their racist attitudes and serve whomever they pleased.
Needless to say, for many years preceding the civil rights movement of the Sixties a large number of people in the United States, Northerners and Southerners alike—rightly—considered racial discrimination vile, ignorant, immoral, and un-American. This attitude embraced racism not only in the public sector as reflect in such things as the South’s Jim Crow laws, but as well in the private sector, where it was not uncommon to find Northern universities enforcing racial quotas against Negroes and Jews.
Following World War II, however, gains started to be made against official—i.e., federal, state, local—racial discrimination, and the Supreme Court’s landmark 1954 school desegregation decision in Brown v. Board of Education was the spark that ignited the organized civil rights movement.
But not everything the movement spawned was legitimate, as the Heart of Atlanta and Katzenbach cases prove.
Brown v. Board of Education invoked the Equal Protection Clause of the Fourteenth Amendment—“No State [iii] shall . . . deny to any person within its jurisdiction the equal protection of the laws”—against official, governmental racial discrimination.
But that wasn’t good enough for some people, who had no difficulty ignoring the crucial distinction between public and private discriminatory conduct. It wasn’t enough for them—rightly—to attack governmental racial discrimination. They insisted on reaching also the private racially discriminatory choices made by all the Heart of Atlanta Motel- and Ollie’s Barbecue-type establishments throughout the entire United States.
This public-private dichotomy is of utmost importance generally, and all the more so when racial discrimination is involved. It’s axiomatic that government, at all levels, must not discriminate racially. However, as irrational and immoral as private racial discrimination is, the Constitution does not prohibit it. No more than it bars gigolos from marrying spinsters for their money, parental indifference to their children’s spiritual needs, or religious bigotry. Indeed, the very nature of a free country, reflected in its Constitution, distinguishes between public and private morality.
As much as victims of racial discrimination had a constitutional right to nondiscriminatory treatment by their government, and had a moral right to it from individuals, those rights were not the same. To attempt a synthesis of the two—constitutional and moral—to hold that the Constitution required private individuals to eschew racial prejudice was, in effect, to make government the arbiter of private morality. It was also to erase the difference between public and private conduct, to compel some people to fulfill the aspirations of others (however legitimate) and, in so doing, to ignore the fact that it is a contradiction to try vindicating supposed “rights” by violating the actual rights of others.
None of these distinctions, however, or anything else, prevented some militant antidiscrimination forces from attempting to convert Negroes’ moral rights into constitutional rights.
Since the antidiscrimination forces couldn’t use the Fourteenth Amendment—a state denying equal protection or due process—against the motel and restaurant, they tried another tactic. Instead of relying on the Constitution, they sought to have enacted a federal statute.
Thus, in the early Sixties a broad-based federal Civil Rights Act was proposed. It was designed to emanate not from the Fourteenth “state action” Amendment, but from an entire different constitutional provision (can you see what’s coming?).
One section of the proposed act was intended to prohibit private racial discrimination in a host of so-called “public accommodations.”
Despite the bill having many congressional supporters, there were serious reservations about whether Congress could reach the private racially discriminatory practices of local business establishments. Senate hearings in 1963 spotlighted the problem:
Attorney General [Robert] Kennedy: We base this [proposed
legislation] on the commerce clause.
Senator Moroney: . . . many of us are worried about the use the
interstate commerce clause will have on matters which have been
for more than 170 years thought to be within the realm of local
control under our dual system of State and Federal government
[federalism].
Senator Moroney: I strongly doubt we can stretch the interstate
commerce clause that far . . . .
Senator Moroney: If the court decisions . . . mean that a business,
no matter how intrastate in its nature, comes under the interstate
commerce clause, then we can legislate for other businesses in
other fields in addition to the discrimination legislation that is
asked for here.
Attorney General Kennedy: If the establishment is covered by the
commerce clause, then you can regulate; that is correct . . . .
Senator Thurmond: Mr. Attorney General, isn’t it true that all of
the Acts of Congress based on the commerce clause . . . were
primarily designed to regulate economic affairs of life and that the
basic purpose of this bill is to regulate moral and social affairs?
Attorney General Kennedy: . . . I think that the discrimination that
is taking place at the present time is having a very adverse effect
on our economy.
Even though Kennedy tried to invoke the Interstate Commerce Clause as the justification for the “public accommodations” section of the Act, he and the senators actually knew better:
Attorney General Kennedy: Senator, I think that there is an
injustice that needs to be remedied. We have to find the tools
with which to remedy that injustice . . . .
Senator Cooper: I do not suppose that anyone would seriously
contend that the administration is proposing legislation, or the
Congress is considering legislation, because it has suddenly
determined, after all these years, that segregation is a burden on
interstate commerce. We are considering legislation because we
believe, as the great majority of people in our country believe, that
all citizens have an equal right to have access to goods, services,
and facilities which are held out to be available for public use and
patronage.
Senator Pastore. I believe in this bill because I believe in the
dignity of man, not because it impedes our commerce. I don’t
think any man has the right to say to another man, you can’t eat
in my restaurant because you have a dark skin; no matter how
clean you are, you can’t eat in my restaurant. That deprives a
man of his full stature as an American citizen. That shocks me.
That hurts me. And that is the reason why I want to vote for this
law. Now it might well be that I can effect the same remedy
through the commerce clause. But I like to feel that what we are
talking about is a moral issue, and issue that involves the morality
of this great country of ours.[iv]
This scheme of curing moral failings on the part of private citizens by even more tortured an interpretation of the Interstate Commerce Clause than already existed found its way into a Senate Hearing Report:
The primary purpose of . . . [the “public accommodations”
section of the Civil Rights Act], then, is to solve this problem,
the deprivation of personal dignity that surely accompanies denials
of equal access to public establishments. Discrimination is not
simply dollars and cents, hamburgers and movies; it is the
humiliation, frustration and embarrassment that a person must
surely feel when he is told that he is unacceptable as a member of
the public because of his race or color.
Members of Congress were not alone in having serious reservations about extending federal Interstate Commerce Clause power so as to control the racial choices made by local business establishments. One of America’s most distinguished constitutional law authorities, Professor Gerald Gunther, informed the Department of Justice, unequivocally, that use of the Interstate Commerce Clause to bar private racial discrimination in local places of “public accommodation” would be unquestionably unconstitutional:
The commerce clause “hook” has been put to some rather strained
uses in the past, I know; but the substantive content of the
commerce clause would have to be drained beyond any point
yet reached to justify the simplistic argument that all intrastate
activity may be subjected to any kind of national regulation merely
because some formal crossing of an interstate boundary one took
place . . . . The aim of the proposed antidiscrimination legislation,
I take it, is quite unrelated to any concern with national commerce
in any substantive sense. It would, I think, pervert the meaning
and purpose of the commerce clause to invoke it as the basis for
this legislation.[v]
Despite the reservations of many knowledgeable people, the Civil Rights Act of 1964 was enacted anyhow, and made to rest on the power granted to Congress in Article I, Section 8’s, Interstate Commerce Clause. Within a year, the constitutionality of its “public accommodations” section was before the Supreme Court of the United States.
The question for the Court in Heart of Atlanta and Katzenbach was the same: Did Congress exceed its constitutionally delegated powers under the Interstate Commerce Clause when it compelled the private owners of local businesses to serve customers whom they declined to serve for racially motivated reasons?
With the ghost of John Marshall (and Robert Jackson) looking over their shoulders, the nine Justices of the Warren Court unanimously upheld the “public accommodations” section of the Act as a constitutionally acceptable exercise of Congress’s power under the Interstate Commerce Clause.
To reach that result, the Court relied on earlier cases in which it had allowed Congress to regulate such aspects of business as the sale of products, wages and hours, labor relations, crop control, and more—all because those aspects had some connection, no matter how tenuous, with interstate commerce.
Those precedents, together with the motel’s and restaurant’s tenuous relationship with interstate commerce—through the former’s guests and the latter’s food purchases—were deemed sufficient by the Court to allow Congress to impose the Act’s “public accommodations” prohibition on the two privately owned local businesses. The Court’s rationale in both Heart of Atlanta and Katzenbach, though lengthy, speaks for itself:
While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. * * * This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight . . . and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself “dramatic testimony to the difficulties” Negroes encounter in travel. * * * These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is “no question that this discrimination in the North still exists to a large degree” and in the West and Midwest as well. * * * This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. * * * This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his “belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.” We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. (Heart of Atlanta Motel, Inc. v. United States)
* * *
Article I, s 8, cl. 3, confers upon Congress the power “to regulate Commerce * * * among the several States” and Clause 18 of the same Article grants it the power to make “all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers” * * * This grant, as we have pointed out in Heart of Atlanta Motel “extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.”
* * *
. . . [e]ven if Ollie’s Barbeque] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” * * *” [Here, the Court cited Wickard v. Filburn.] The activities that are beyond the reach of Congress are “those which are completely which a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” [Here, the Court cited Gibbons v. Ogden.] This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago.
* * *
The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid.[vi] (Katzenbach v. McClung.)
In sum, because Negroes were wrongly, indeed immorally, discriminated against by local, private, non-governmental businesses that had tenuous connections with interstate commerce, and because Congress wanted to rectify that situation, the federal legislature justified “public accommodations” legislation on the basis of the Interstate Commerce Clause—even though United States Senators, the Attorney General of the United States, and eminent constitutional law scholars, knew very well that the clause was never intended for that purpose and to use it in that way was patently unconstitutional.
Even worse is that the Supreme Court of the United States went along with the charade, building on Marshall’s opinions in M'Culloch and Gibbons, Jackson’s opinion in Wickard, and like opinions by other justices in the 150 years between McCuloch and Heart of Atlanta/Katzenbach.
And they all did so in the name of “morality.”[vii]
These two cases raise a profoundly important question: If a core founding principle of this nation is the republican institution of federalism—as reflected in the delegation of power to Congress, and the Tenth Amendment’s reservation of power to the states and the people—in light of just the four cases I’ve examined so far from 1819 to 1964 is there any limit to the statutory reach of the Interstate Commerce Clause power when Congress wants to employ it to intervene in matters of profoundly personal choice?
Sadly, the answer is “no.”
[i] 379 U.S. 241, 85 S.Ct. 348 (1964).
[ii] 379 U.S. 294, 85 S.Ct. 377 (1964).
[iii] Emphasis added. Because the Fourteenth Amendment did not reach federal action, in a companion case to Brown involving racial segregation in District of Columbia public schools the Supreme Court ruled that the Due Process Clause of the Fifth Amendment, which applied to the federal government, possessed “equal protection content.”
[iv] Hearings before the Senate Committee on Commerce on S. 1732, 88th Cong. 1st Sess., parts 1 and 2. Emphasis added.
[v] See Gerald Gunther, Constitutional Cases and Materials, 10th ed., 203. It’s worth noting that neither the senators nor Professor Gunther objected to the “public accommodations” provision of the proposed Civil Rights Act as such. It was fine with them that private businesses operating locally could be required by the federal Congress to eschew their racially motivated choices. As we’ve seen, the opposition was limited not to the principle at stake, but rather to the constitutional base the prohibition of private choice would rest on, preferring not the Interstate Commerce Clause but rather the Fourteenth Amendment (which could not have applied).
[vii] Justice William O. Douglas concurred in Katzenbach v. McClung, demonstrating that for him there were no limits of any kind on the scope of the Interstate Commerce Clause. Not if, as he wrote, Congress does not lack the “power to regulate commerce in the interests of human rights.” How far that power would extend is limited only by one’s imagination.
Gonzales v. Raich[i]
John Marshall and Mary Jane
In 1996, California voters passed the “Compassionate Use Act,” a “medical marijuana” law. According to the Supreme Court, “[t]he Act create[d] an exemption from criminal prosecution for physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. A ‘primary caregiver’ is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.”
In accordance with the Act, two California women, Raich and Monson, used marijuana for serious medical conditions—until agents of the federal Drug Enforcement Agency seized and then destroyed six of Raich’s home-growing marijuana plants.
The agents acted under the authority of the federal Controlled Substances Act, which prohibited the women from producing or possessing marijuana for their personal medical use.
Raich and Monson sued the government, claiming that the federal Controled Substances Act’s prohibition of intrastate, non-commercial cultivation and possession of marijuana for personal medical purposes, as recommended by a patient's physician pursuant to valid California state law, was an unconstitutional exercise of Congress’s power under the Interstate Commerce Clause.
In light of what John Marshall’s had wrought in M'Culloch, Gibbons, and later cases, and subsequent Interstate Commerce Clause cases like Wickard and Heart of Atlanta, the ladies faced a difficult uphill battle.
So it was no surprise that they failed in their attempt in the federal district court to obtain a preliminary injunction against enforcement of the Act against them.
On appeal to the United States Court of Appeals for the Ninth Circuit, that court reversed. It ruled that a preliminary injunction was warranted because of the strong likelihood that, when the district court addressed the merits of the women’s claim, they would prevail. The Ninth Circuit relied on two modern cases in which the Supreme Court had appeared to cut back on the reach of the Interstate Commerce Clause and its evil twin, the Necessary and Proper Clause.
But when Gonzales v. Raich reached the Supreme Court, it reversed the Ninth Circuit.
The Court began by acknowledging that Congress had enacted the Controlled Substance Act in an effort to prevent, and enhance law enforcement over, drug trafficking. To that end, according to the Court, Congress created “a closed regulatory system” that made it unlawful to “manufacture, distribute, dispense, or possess,” any kind of “controlled substance” except to the extent, and in the manner, allowed by the Act.
Marijuana is a controlled substance, thus making its production, distribution, and possession a federal criminal offense. The Act makes no distinction between intrastate and interstate production, distribution, and possession.
The first case cited by the Court in support of its conclusion that California’s Compassionate Use Act was trumped by the Controlled Substances Act as a legitimate exercise of Congress’s power under the Interstate Commerce and Necessary and Proper Clauses was, surprise!, Wickard v. Filburn,
where, in rejecting the . . . farmer's contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for [Filburn’s]own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. [ii]
The Court next noted that:
[t]he similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production 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. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether [Raich’s and Monson’s] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere . . . and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.
It fell to Justice Clarence Thomas, in dissent, to make the case against the CSA being a legitimate exercise of Congress’s power.
Thomas’s constitutional framework is that of “originalism,” a principle that had been around for a long time, but not as part of mainstream constitutional law.
Then, in 1985, Attorney General of the United States Edwin Meese III delivered an historic speech to the American Bar Association.[iii] Meese reminded the assembled lawyers and judges of “the proper role of the Supreme Court in our constitutional system”: “The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.” Then he asked:
What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and [iv] the charge of being either too conservative or too liberal.
A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.
It is this principle of originalism that Justice Thomas’s dissent in Gonzales v. Raich is rooted, and that dissent masterfully exposes how the Founders’ democratic institution of federalism suffered immeasurably from the Supreme Court’s majority decision. Thomas adverted to the Founders’ understanding of “commerce”—“trade or exchange”—and then drew the necessary conclusion that notwithstanding the precedents upon which the majority relied, the Interstate Commerce Clause could not sustain the federal prohibition on intrastate, home-grown, home-consumed, marijuana.
Thomas’s opening paragraph revealed his overall view of the case, as well as his concern with the federalism principle that the majority had abandoned:
. . . Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.
Accordingly, because he was convinced by the Interstate Commerce Clause’s “text, structure, and history,” Thomas concluded that Congress had no power to regulate Raich’s and Monson’s marijuana.
That, however, was not the end of Thomas’s dissent. After disposing of the Interstate Commerce Clause issue to his satisfaction, bringing us full circle he turned to John Marshall’s M'Culloch v. Maryland opinion:
More difficult, however, is whether the CSA is a valid exercise of Congress’s power to enact laws that are “necessary and proper for carrying into Execution” its power to regulate interstate commerce. * * * The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power. Nor it is, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.
“The question,” said Thomas, was “whether the intrastate [v] ban is ‘necessary and proper’ as applied to medical marijuana users like” Raich and Monson.
It wasn’t, Thomas believed:
[N]either in enacting the CSA nor in defending its application to [the two women] has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress’ aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.[vi]
This conclusion, however, did not end Thomas’s analysis of the Necessary and Proper Clause as it applied (or didn’t) to California’s medical marijuana law. “Even assuming,” he wrote, that “the CSA's ban on locally cultivated and consumed marijuana is ‘necessary,’ that does not mean it is also ‘proper.’ The means selected by Congress to regulate interstate commerce cannot be ‘prohibited’ by, or inconsistent with the “letter and spirit’ of, the Constitution.” (Citing M'Culloch.)
Continuing, Thomas returned to an opinion he had written in an earlier case entitled United States v. Lopez. There, he had argued that “allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general ‘police power’ over the Nation.” Then he related Lopez to Raich:
This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” (United States v. Morrison (Thomas, J., concurring).)
Finally, apparently unable to resist employing a reductio ad absurdum, but an apt one nonetheless, Thomas suggested that “[i]f the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’ The Federalist No. 45, at 313 (J. Madison).” It also, one can add, completely exposes Marshall’s opinion in M'Culloch as the anti-constitutional construct it surely is.
The balance of Justice Thomas’s Gonzales dissent is a fitting note upon which to end this section on the republican institution called federalism bequeathed to us in the Constitution by the Founders but subverted and perverted by a long parade of Supreme Justices beginning with John Marshall.
Justice Thomas’s Gonzales v. Raich dissent is a ballad to a crucial founding constitutional pillar that has been eaten away by legislative supremacists: federalism.
· “Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.”
· “The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively.”
· “The Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government.”
· “This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce—not to mention a host of local activities, like mere drug possession, that are not commercial.” [vii]
· “One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that ‘[t]he Constitution created a Federal Government of limited powers’.”
· “That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter.”
· The majority's rush to embrace federal power “is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.”
For these reasons, M'Culloch, Gibbons, Wickard, Heart of Atlanta/Katzenbach and Raich, all of which struck at the vitals of federalism, are among the fifty worst decisions of the Supreme Court.
Regrettably, the corollary structural principle of separation of powers has fared no better.
[i] 545 U.S. 1, 125 U.S. 2195 (2005).
[ii] This quotation and those that follow in the text of this chapter are taken from the Court’s syllabus, which summarizes the majority opinion.
[iii] That portion of Attorney General Meese’s speech relating to originalism, as well as speeches on that subject by Supreme Court Justices William J. Brennan, Jr., and John Paul Stevens, Judge Robert Bork, and President Ronald Reagan, are collected in “The Great Debate: Interpreting Our Written Constitution,” published by the Federalist Society as Occasional Paper No. 2 (1986).
[iv] Emphasis in original.
[v] Emphasis in original.
[vi] Emphasis added. Justice Scalia voted with the majority because he believed that “Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market could be undercut if those activities were excepted from its general scheme of regulation.”
[vii] Emphasis in original.
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