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Reefer Mad-As-Hell-Ness
I'm not a pothead, as for me, smoking pot has the same effect as having somebody club me over the head with a frying pan, but I have a number of extremely successful friends who smoke pot daily -- putting themselves at some risk. As I'm firmly against our laws against drugs, prostitution, and organ sales (ie, it's your mind, take it where you want to, and it's your body, sell it if you want to), I asked a question over at Reason:

Can somebody who's a lawyer or legal scholar please explain how it could possibly be constitutional to ban drug use?

"The Real Bill" replied:


I'm no legal scholar, but from what I've read, it's not constitutional, but that's not a deterent to Congress and the majority of the American people. We are no longer a republic; we are a democracy (mob rule).

Then "Kwix" responded:

Amy, Drug use is not, and hopefully cannot be banned. However, drug posession (which preceeds use) is banned via a very crappy Supreme Court decision in 1942 (Wickard v. Filburn) that determined that congress could control any and all items on the basis that they may contribute to interstate commerce and therby fall under the commerce clause of the Constitution even if the item never enters the trade stream (eg, pot grown for personal use).

This one ruling, and subsequent upholdings of it, are what legally allow congress to develop and maintain the Schedule of Drugs and make laws regarding possesion and distribution without having to amend the constitution as was necessary for alcohol prohibition.

The Wikipedia link he posted didn't have much information, so I searched on, finding a pretty interesting article by David N. Mayer, "Reefer Madness Meets Wicker v. Filburn," about what seems another poorly decided court case:

In the medical-marijuana case Gonzales v. Raich, the Supreme Court ruled six to three that federal laws criminalizing drug possession applied even to persons using homegrown marijuana, or cannabis, for medicinal purposes under sanction of state law. Although the case may seem to involve issues of personal liberty, it really involved a question about federal power—the scope of Congress’s power under the Interstate Commerce Clause of the U.S. Constitution. The six-justice majority decided, in effect, that Congress’s powers under this clause were almost limitless.

The two women using the medicinal marijuana, Diane Monson and Angel Raich, are California residents who suffer from a variety of serious medical conditions: Monson, forty-eight, suffers from severe back pain caused by a degenerative disease of her spine; Raich, thirty-nine, is subject to severe, debilitating pain from an inoperable brain tumor and more than a dozen other ailments. Both were treated by licensed, board-certified doctors who have concluded, after prescribing a host of conventional medicines to treat their symptoms, that marijuana is the only drug available that provides effective pain relief—in other words, that the active ingredient in cannabis provides relief that no ordinary drug can provide. Both women have been using marijuana for several years as a medication, pursuant to their doctors’ recommendation, and both rely heavily on cannabis in order to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments certainly would cause Raich excruciating pain and could well prove fatal to her.

Sadly, Mayer writes, the majority of the Supremes voted to leave Wickard intact. Only three justices dissented -- Rehnquist, O’Connor, and Clarence Thomas:

As (Randy) Barnett observes, Thomas’s dissent shows that he is the only principled originalist justice on the Court today. And, as his separate opinions in Lopez and Morrison also showed, he is the only justice on the Court who truly understands the importance of interpreting the Commerce Clause—or any other particular provision of the Constitution, such as the Necessary and Proper Clause—in the context of the Constitution as a whole. Citing Barnett’s own law-review articles discussing the original meaning of the Commerce Clause, Thomas observed that at the time of the Constitution’s adoption the term commerce was consistently used to mean trade or exchange—“not all economic or gainful activity that has some attenuated connection to trade or exchange.” Even if we ignore the original understanding, Thomas added, we ought to follow the text of the Constitution, which authorizes Congress to regulate “commerce.” Monson’s and Raich’s conduct “does not qualify under any definition of that term.” Moreover, in response to Scalia’s reliance on the Necessary and Proper Clause, Thomas explained that banning such intrastate drug activity was neither “necessary” nor “proper”: it was not sufficiently linked to the illicit interstate drug market, and a ban encroaches on the traditional police powers of the states. “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,” Thomas noted. “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption,…then Congress’ Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits.”

As Thomas concluded: “Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has 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….[L]ocal cultivation and consumption of marijuana is not ‘Commerce among the several States.’ U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.”

The federal “war on drugs” is based on an irrational fear of narcotic drugs, a hysteria that includes even so relatively harmless a drug as marijuana—a hysteria aptly caricatured in the classic cult film Reefer Madness. Of the nine members of the U.S. Supreme Court, four “liberal” justices would allow Congress to criminalize the use and possession of marijuana under all circumstances (even when homegrown for purely medicinal purposes) because they would cede to Congress unlimited powers over Americans’ lives under the rubric of the Commerce Clause. Two other “conservative” justices join the “liberals” in embracing this view of Congress’s plenary powers either because they’re enthralled by Reefer Madness hysteria or because they’re willing to shift the rationale for plenary powers from the Commerce Clause to the Necessary and Proper Clause. Three “conservative” justices aren’t willing to go so far because they recognize that the Constitution imposes limits on Congress’s powers—among them, the principle of federalism. Of those three, only one justice, Thomas, fully understands that it’s not just simply federalism that’s threatened by the Court’s decision: it’s the Constitution itself, for if one of its provisions—whether the Commerce Clause or the Interstate Commerce Clause—is interpreted as broadly as the majority justices do, the rest of its text becomes mere “dead letter.”

Posted by aalkon at December 16, 2006 6:43 AM

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The first attempt on drug regulation was the Harrison Narcotics Tax Act of 1917. They had a problem with an outright ban of controlled substances so Congressman Harrison of New York decided to regulate it out of existence. The main premise of the law:

"An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax on all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes."

Over the years the law was amended to include hemp and marihuana... the 1937 Marihuana Tax Act. So anyone could own, grow or exchange these substances as long as they had a special license (Tax Stamps) and pay the appropriate taxes. Who would print out these special stamps? It was Congress' job and did they distribute them? Not one. So if a hemp farmer or a medical doctor had any of the listed regulated drugs would be arrested for not paying the proper taxes.

The 1937 Marihuana Tax Act was overturned by the Supreme Court in 1969 as a violation of the 5th Amendment. Courtesy of Dr. Timothy Leary. So Congress enacted the Controlled Substance Act of 1970. The CSA established the outright ban on any designated illegal controlled substances. The creation of the five scheduled classification system of drugs and the DEA.

There were many earlier laws before the Harrison Act, but they were local or state laws.

Posted by: Joe at December 16, 2006 3:04 PM

It reminds me that during prohibition days it wasn't illegal to own alcohol, just to transport and sell it, so some California wineries would ship juice stock out with crafty warning labels: "Caution: don't store in a cool, dark place, for more than three months."

I recall a few barroom arguments, where someone would start in how they should be able to grow and consume their own pot, and someone else would pipe in how they should be able to machine and fabricate their own 155 mm howitzer "just in case the neighbors get out of hand", and another guy thought he lived over a vein of uranium ore he could refine and centrifuge down into a thermonuclear device to keep as a conversation piece on the mantel.

Posted by: doombuggy at December 17, 2006 4:46 AM

The wisdom of drunks aside, how does it hurt anyone if you grow and smoke a little pot? It may even prevent you from getting alzheimer's -- saving the rest of us some health care dough.

Wish the stuff didn't lay me flat.

Posted by: Amy Alkon at December 17, 2006 7:05 AM

Personally, I had similar effects with weed. Also, I would watch about 10 hours of TV Land or Star Trek reruns. Pulled a muscle from laughing too hard from watching a Munsters weekend marathon.

USA may be a nation concieved in liberty and individual freedom, but we still have this strong puritanical, neo-Calvinist strain that resurges every decade or so.

The History Channel produced a series called: Hooked: Illegal Drugs and How They Got That Way. Each episode would deal with an individual drug, its discovery and how it was legally used. Also, the abuses, the eventual public health campaign and its eventual illegal status. The one thing you will notice during the various episodes are the usual suspects who want to criminalize drug use. Religious and civic leaders.

Posted by: Joe at December 17, 2006 2:59 PM

An old line chemical company lobbied heavily to pass the 1937 Marihuana Tax Act just before their release of the newest synthetic fiber. This was the beginning of our reliance on petroleum based products instead of naturally grown renewable resources.

Posted by: Roger at December 18, 2006 6:42 AM

Joe wrote:
The one thing you will notice during the various episodes are the usual suspects who want to criminalize drug use. Religious and civic leaders.
- - - - - - - - - -
... maybe because they are the folks who see up close the negative social impact of drug use. Crime, violence, broken families, ruined lives.

I'm not saying it's the government's role to save people from themselves. But there definitely are negative effects to drug use - that is, there are real reasons beyond "puritanism" for people's desire to regulate this stuff.

Posted by: Ben-David at December 18, 2006 7:05 AM

Alcohol causes crime, violence, broken families, ruined lives.

Cigarettes cause disease and death.

The government doesn't seem to have a problem with this.

Posted by: Chris at December 18, 2006 12:57 PM

Altered mental states which hold the potential for spiritual insight or even just pleasure are a threat to organized religion.

Civic leaders are more concerned with their financial gain on mind- and mood-altering substances, and give preferential treatment to their friends who produce them.

Posted by: Chris at December 18, 2006 1:18 PM

As I wrote about in somewhat more detail in my 100+ page 3d-year paper while at Harvard Law School, the Wickard v. Filburn holding essentially repealed the Constitution and replaced the limited government clearly and emphatically delinated in the Constitution with literally unlimited Congressional power. It is impossible to overstate the significance of Wickard v. Filburn which was nothing less than a sub silentio overthrow of democracy. But hey, we hoi polloi are too stupid to know whats good for us anyway, right?

Posted by: TheManTheMyth at December 26, 2006 12:18 PM

[Un]forunately for me, Congress hasn't yet figured out how to translate the carte-blance it received in Wickard into a total victory over the blight of inadvertent double-postings....

Posted by: TheManTheMyth at December 26, 2006 12:22 PM

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