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Is It Constitutional? Federal Drug Policy: Part 2 of 3

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In order to delve into the “Constitutionality”, or lack thereof, of drug policy, I realized that such a task requires that I open a can of worms I’ve been avoiding: the commerce clause.

So, the topic of today’s post, How Is Drug Policy Constitutionally Justified? Is It Justified? will explore, almost exclusively, the commerce clause . This answer to the second question is both very easy and very difficult to answer.

The quick answer is yes, federal drug policy has been Constitutionally justified by the Supreme Court because the Supreme Court has Constitutionally justified broad interpretations of Congressional power because of the commerce clause. The long answer is what this blog post exists to explore. Just because the Supreme Court says something is Constitutional does not mean it’s indeed Constitutional (Take a look at the Dred Scott Supreme Court case. Or, take a look at the Court’s decision to uphold the internment of Japanese Americans.) However, if I’m going to explain where federal drug policy comes from, I first have to explain the origins and evolution of the commerce clause—because federal drug policy is justified by commerce clause precedent.

So, let’s dive in.

How Is Drug Policy Constitutionally Justified?

Let’s rewind a few centuries to look at the evolution of the infamous “commerce clause”. The clause says:

“To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;”

That’s it. That’s the infamous commerce clause in Article 1, Section 8 of the U.S. Constitution.

Original Context/Drafting

In 1787, during the drafting of the Constitution, those involved in the Constitutional Convention were well aware of the major issues the confederacy was facing under the Articles of Confederation. One of the critical issues killing the young country was its struggle to streamline commerce. However, those in the convention were not as concerned about interstate commerce amongst the states as they were with foreign commerce, and most of the interstate commerce issues that the founders wanted to address, they addressed in other sections of the Constitution, specially in Article 1, Sections 9 and 10 (Congressional Research Service Report (CSR)).

photo of a boat on a river

Interestingly enough, according to one source, the commerce clause was not drafted with interstate commerce in mind. “This is because state restrictions on trade between states were already prohibited under the Articles of Confederation, and the states generally complied with these restrictions.47 Consequently, commentary contemporary to the ratification of the Constitution indicating that the Commerce Clause was intended to limit state restrictions on interstate commerce was minimal.” In other words, the Articles of Confederation already directed states to work together in the realm of commerce, and therefore most states already did.

Rather, those drafting the Constitution included the commerce clause because of their concerns regarding foreign trade. There needed to be a uniform way to engage in foreign trade. Further, and most importantly, the drafters wanted a federal government that was empowered to impose tariffs on imports in order to raise money to pay off Revolutionary War debts. They also wanted Congress to be able to regulate and restrict foreign commerce in order to propel American interests.

In other words, the drafters of the Constitution and the creators of our government thought very little about this clause because, in their minds, it empowered the federal government with inconsequential power. The purpose of the clause was to allow for federal regulations, restrictions, tariffs and imposts on foreign goods to provide for adequate federal funds to pay debts and to trigger more American innovation. The founders were patently unsuspecting of the abuse this clause would end up taking because of the way it would be used to justify broad swaths of federal power.

Case Law and Precedent

The government, when determining its own power, almost always errs on the side of greater government power than lesser government power. Never forget this.

So, keeping this in mind, I’m going to walk you through a few of the Supreme Court cases that took the commerce clause and made it the ambiguous catch-all power it is today.

The first major shift in Congress’s commerce power occurred in 1824 as a result of the Supreme Court case, Gibbons v. Ogden. Ogden had purchased rights from a company who had a monopoly on the Hudson River between New York and New Jersey. This monopoly was legitimized by state law. Ogden’s purchase allowed him to operate his steamboat in the waters owned by the monopoly. Ogden sued Gibbons because Gibbons began operating his steamboats in the same waters… but without the approval of the monopoly (Fulton and Livingston).

Gibbons claimed that he was simply operating under a federal license to engage in coast trade. In other words, this case presented an interesting question for the Court. When state law directly contradicts federal law, which law wins? (If you want to learn more about this and the Supremacy Clause, read my article here).

John Marshall, Chief Justice at the time, and his court, sided with Gibbons and argued that the federal government, via the commerce clause, had full authority to regulate all interstate commerce. This meant that the federal law was supreme over the state’s law. This case was significant for many reasons. It was one of the first cases that firmly established federal supremacy over states but it also opened the door for a broad range previously not held federal powers over the economic functions of society.

Here’s something I find even more interesting. While the Supreme Court, with this case, did open the door for Congress to take an immense amount of power under the commerce clause, Congress restrained themselves.

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"The Court did not soon revisit this expansive view of the Commerce Clause. Instead, over the next several decades, the Court considered the boundaries of the 'dormant Commerce Clause' doctrine—the implied limitation of the Commerce Clause on a state's ability to regulate commerce.49 This, combined with the relatively cautious exercise of the power by the early Congresses, meant that the Supreme Court did not have occasion to consider the limits of Congress's power under this doctrine for almost 60 years." (CRS Report)

However, things got really interesting after that 60 years passed and Congress started meddling in areas previously untouched. Case upon case built the precedent that Congress not only has power to regulate commercial activities but also has discretion in regulating activities that they believe could affect interstate commerce.

"Thus the Court found that in some cases, events of purely local commerce (such as local working conditions) might, because of market forces, negatively affect interstate commerce, and thus would be susceptible to regulation.58 The Court has also held that an activity which in itself does not affect interstate commerce could be regulated if all such activities taken together in the aggregate did affect interstate commerce.59 Under the reasoning of these cases, the Court has upheld many diverse laws, including laws regulating production of wheat on farms,60 racial discrimination by businesses,61 and loan-sharking.62" (CRS Report)

Perhaps the most powerful of these Supreme Court cases was Wickard v. Filburn in 1942. In Wickard, the Court was asked if a federal quota system, created by the federal Agricultural Adjustment Act of 1938, could restrict the amount of wheat that an individual produces from homegrown bushels of wheat. In other words, if an private individual grows his or her own wheat and uses that wheat to provide for themselves their own bread and flour, is this wheat subject to federal law?

According to the Court, yes. Yes, this private production of wheat within one state (intra versus inter) should be subject to federal law because in the aggregate, if many people grow their own wheat instead of buying wheat from stores, the economy can be affected. I hope this blows your mind as much as it does mine. If the Courts can find a way to justify the government regulating a private individual’s decision to grow their own food…what can’t they regulate?

"In upholding the statute as constitutional, the Court held that economic activities, regardless of their nature, could be regulated by Congress if the activity 'asserts a substantial impact on interstate commerce.... '94 The Court reasoned that the growing of wheat, even if only for a family's personal consumption, provided an alternative to the marketplace that was both viable and competitive.95 Although the Court admitted that one family's production alone would likely have a negligible impact on the overall price of wheat, if combined with other personal producers the effect would be substantial enough to make the activity subject to congressional regulation.96 The rationale of combining individual effects to find substantial impacts on interstate commerce has become known as the "aggregation theory," and arguably represents the most far reaching example of Congress's authority to regulate under the Commerce Clause.97"(CRS Report)
close up shot of person holding wheat

Let’s for a moment consider the assumptions that this ruling is based upon. The primary assumption this ruling affirms is that it’s the federal government’s job to manage, run, and control the movement of buying and selling in the U.S. Essentially then, it’s the federal government’s job to manage the health of the economy. This assumption, while patently incorrect when compared to the Constitution written and ratified in 1787, held weight in the 1940s because the expectations of government by the citizenry and government had shifted during the Great Depression. In other words, economic crises work wonders for federal power. The citizenry began to see the managing the economy as part of government’s job description, much to government’s delight. Therefore, this Wickard ruling is based upon the flawed but powerful argument that since it’s government’s job, via the commerce clause, to manage the prices, wages, and supply and demand of the nation, it’s a given that the federal government can regulate the personal activities of one individual growing wheat and eating it themselves.

You see how this works? The government fundamentally shifts its role in the lives of the citizenry and the citizenry gladly accepts it. The irony being that if government can do this, what can’t it do with the justification of commerce?

There were a few cases, United States v. Lopez (1995) and United States v. Morrison (2000) that the Supreme Court arbitrarily went somewhat against the precedent set in Wickard by saying that the federal government could not regulate certain items, such as guns (much more detail here that I’m leaving out for simplicity’s sake) since they were not affecting commerce in the aggregate. This is where understanding the dangers of arbitrary power is so critical. The government can decide when to curb government power and when not, and it doesn’t have to have any coherency or consistency with itself because government is making its own rules.

What Does This Have to Do With Drug Policy?

So, four years after Morrison, the precedent set in Wickard was bolstered by another Supreme Court ruling, Gonzales v. Raich (2004). In this case the Supreme Court reversed a ruling by the Court of Appeals for the Ninth Circuit that upheld the use of personal, and medicinal marijuana. A California law, called the Compassionate Use Act, allowed for seriously ill patients to obtain marijuana. This law conflicted with a the federal law, the Controlled Substances Act, which deemed such an action illegal. The Ninth Circuit held that it was beyond the federal government’s jurisdiction to regulate and restrict the personal use of medicinal marijuana in this case.

The Supreme Court felt differently. They argued that…

"'by both the "Necessary and Proper Clause, and the Commerce Clause of Article I includes the power to prohibit the local growth, possession, and use of marijuana permissible as a result of California's law.'123 Justice Stevens, writing for the majority in the now-entitled Gonzales v. Raich, reversed the Ninth Circuit's decision and held that Congress's power to regulate commerce extends to purely local activities that are 'part of an economic class of activities that have a substantial effect on interstate commerce.'124


According to the Court, just as there was no difference between the wheat Mr. Wickard produced for personal consumption and the wheat cultivated for sale on the open market, there is no discernable difference between personal home-grown medicinal marijuana and marijuana grown for the express purpose of being sold in the interstate market.127 Thus, the Court concluded that Congress had a rational basis for concluding that 'leaving home-consumed marijuana outside federal control would similarly affect price and market conditions'."128

And so, here we are. The Supreme Court, over the centuries has slowly found a way to Constitutionally justify the federal government’s ability to limit the way that an individual chooses to grow a plant on his own property or regulate what an individual chooses to ingest. Obviously, these are just two examples, examples of a list that I can’t realistically write out here since the list of items and actions subject to federal regulations according to this precedent is limitless.

 "An examination of the United States Code shows that more than 700 statutory provisions explicitly refer to either "interstate" or "foreign" commerce, covering a significant number of issues. These issues include agriculture,1 banking,2antitrust,3 securities,4 business regulation,5 energy regulation,6 hazardous substances,7 consumer credit,8 sports regulation,9 the Internet,10 endangered species,11 civil rights,12 child support,13 child pornography,14 abortion,15criminal law,16 controlled substances,17 food,18 firearms control,19 terrorism,20 obscenity,21 gambling devices,22 labor,23industrial safety,24 pensions,25 environmental law,26 fish and wildlife,27 medical products,28 water pollution,29 atomic energy,30 shipping,31 motor vehicle safety,32 airplanes,33 and tort litigation."34

Remember, it’s not about the issue, but about the level of government empowered to regulate the issue. According to the federal Constitution, the vast majority of everything listed above lies in the realm of state and local power. However, because of the way the commerce clause has been interpreted and re-interpreted, there almost is no such thing anymore as intra state commerce (commerce taking place within a state only). There’s simply commerce and the federal government flexing its regulatory muscles with no limitations while using their newfound magic word: commerce.

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Friends, this power, justified by the commerce clause, is truly staggering…and limitless. I wish I had more room and time to unpack this clause and the ripple effects of it’s continued misinterpretation even more, but I hope, for now, I’ve wet some appetites. You see, this infamous commerce clause is the same clause the government uses to justify all federal drug policies, federal drug incarcerations, federal drug law enforcement agencies, federal drug task force teams and federal drug asset seizure forfeitures.

The fact that this clause is the foundation for drug policy and all that follows should make everyone question the goal of government and their “war on drugs”. Truly, when has anything the government’s done been out of pure altruism rather than a greed for power?

The Liberty Belle

5 thoughts on “Is It Constitutional? Federal Drug Policy: Part 2 of 3”

  1. Pingback: Part 2 of 3 – The Liberty Belle –

  2. Chris………… My writings may sound cynical at times but as I said before I merely attempt to “temper our passions with reason while never squelching the passion”. Your writings shine a light on the basis of understanding where those passions are formed …….In our Constitution. We are all better informed citizens due to your relentless work. This old man still has a lot to learn it seems. My apologies and all the best!………..”B”

  3. While the government may have the right to regulate commerce, nowhere in the constitution is there anything allowing the government to restrict ones liberty. The government may only make laws so long as they do not interfere with a man’s natural rights. Explained best by Theophilus Parsons in the Massachusetts Ratifying Convention.

  4. R. Bruce Hartnett

    Thanks again Chris!
    Once again, our only alternative to the blatant unconstitutional abuse of power by the respective governments, via the also unconstitutional decisions of the power grabbing courts, is to simply REFUSE to comply with any unconstitutional laws, rules, etc. (i.e., most of them)!
    The more of us that take this action, the closer we come to taking our Nation State back!
    The Wheat & “growing” your own issues really hit close to home, living on a farm & relying on Wheat & Milo (grain sorghum), plus a large garden! It’s absolutely NONE of their business! Another reason our properties have been Posted “No Trespassing” for several years, with large signs.

    1. Or, another similar perspective:
      “You don’t need a state nullification bill for a thousand unconstitutional acts of the federal government. Those acts have no force of law to begin with…there’s nothing to nullify. Mass non-compliance is all that is necessary, and not a single U.S. citizen has any legal, moral, or ethical duty to comply with any unconstitutional act of the federal government…or their state or local government for that matter.”
      L.e., Unconstitutional = Null & Void!!!
      Missed your Posts!!!

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