A case is currently making its way though our legal system that could potentially bring down the very root of marijuana prohibition. The case has drawn little attention from the media, but behind the scenes, state legislatures across the nation have gotten directly involved in the effort to overturn a key New Deal- era Supreme Court case. Should they succeed even in part, the federal government’s ability to interfere in state affairs would be dramatically diminished. Success, would render the Controlled Substances Act powerless to affect intra-state activity and thus allow any state to implement reform or even full marijuana legalization without any DEA or Department of Justice trouble.
The decision that this effort seeks to overturn comes from the 1942 case of Wickard v. Filburn. Roscoe Filburn was a wheat farmer who refused to comply with a federal law that regulated how much wheat he could grow. Because he grew twice as much as he was allowed to, he was ordered to destroy the excess crops and pay a fine. Filburn then went to court and claimed that because he was gonna consume all the excess wheat himself, it would have no effect on interstate commerce and was thus beyond the reach of the federal Commerce Power since the Constitution only grants it power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
When the case reached the Supreme Court, it did so a time when President Franklin Roosevelt and his New Deal reforms were putting enormous pressure on the court to expand federal power. As a result, the court ruled that even if an “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 and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ “ Since the extra wheat could replace other purchases, possibly from other states, it was deemed to have an effect on interstate commerce. By thus declaring that Congress could regulate absolutely any activity that may somehow affect commerce between the states, the Supreme Court opened the floodgates to Federal intervention in all areas of state life. The ruling allowed the creation of a wide range of legislation, from the Endangered Species and Civil Rights Acts, to the Controlled Substances Act.
The man behind the plan is one Gary Marbut from Montana. Guns are the 65-year-old’s central passion, and he has been a tremendously successful advocate for the gun rights cause. Mr. Marbut’s activism has helped Montana lawmakers get elected and gotten him into the business of legislation without a single vote; he has written a number of gun-related bills enacted by the Montana legislature. Thus, it comes as no surprise that Marbut has chosen to attack the federal government with a gun rights angle.
To start, Mr Marbut convinced the Montana legislature to pass his Firearms Freedom Act, which declares that federal gun regulations do not apply to any weapons produced in Montana that carry an “in-state” stamp. Once the law passed, Marbut announced that he would begin production of a miniature rifle for children and that by virtue of the new Act, as long as he only sold it in Montana, he did not have to submit to any federal guidelines or inspections. The bait worked, and so began the quest to bring the matter to the Supreme Court. The case was dismissed by a district court, but far from dampening enthusiasm, the effort has only grown in scope. Seven other states have passed similar laws (and a whopping 17 are still trying to) in order to force the issue and Marbut also has the backing of ten state attorney generals, numerous legislatures and national conservative organizations.
In the 2005 Gonzales v. Raich case, the Supreme Court explicitly used the Wickard precedent to justify the federal government’s power to regulate (ban) home-grown marijuana use regardless of state law. The 6-3 decision stated that “Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is 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.”
Today, what Marbut calls the “emerging awareness by the people of America that the federal government has gone too far,” may just create the right social and political conditions for a more conservative Supreme Court to take a good long look at the Tenth Amendment and work towards limiting federal power. The Commerce Clause should not be used as a one size fits all justification for burdensome government regulations. Certainly, many of the activities of medical marijuana patients and providers have nothing to do with commerce “among the several states” and should not be subject to the Controlled Substances Act. If Gary Marbut has his way, we may soon see a new era of narrowed down federal power and with it, a de-facto end to national marijuana prohibition.
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