Free Trading Into Commerce Submission

I wanted to comment on Raich this afternoon, but thought it better to allow my learned colleague to note the proper legal history within the context of constitutional philosophy (mainly so I would not have to). Now that this is out of the way, I have one thought that keeps bugging me.

The Court today essentially reaffirmed the decision made over 60 years ago in Wickard - anything that is conceivably related to interstate commerce can be regulated under the Commerce Clause. Even objects created within one's own property boundries, and meant totally for one's own consumption, are tied to interstate commerce, and therefore, can be regulated.

As a legal question with respect to the original meaning of the Constitution, this is ridiculous. However, as an economic question, it doesn't seem so. Some, who support the cause of Angel Raich, even some who wrote dissenting opinions to this decision, claim that marijuana grown in one's own home to be used in that home does not enter the market and would not afftect the "interstate market" for marijuana. However, it clearly does. If every marijuana user grew his or her own weed, the "market" would no doubt be affected. Likewise, if every farmer grew his own wheat for his own use, the wheat market would not find this trivial.

Again, I should note that this is not attempt to address the legal question of whether this is the correct way to read the Commerce Clause. Nonetheless, the Commerce Clause jurisprudence seems to be a settled matter for all practical purposes. And it is decided that it shall be interpreted in such a way that all things related to interstate commerce shall be fairly regulated by the federal government.

The implications of this interpretation now as opposed to say 150+ years ago should be contrasted. Theoretically, even today, if such a product existed that was produced by oneself for oneself, and if no true national market existed, then even the majority of today's decision would have to concede that it could not properly be regulated by Congress (at least by CC - though I'm sure they could come up with another reason). In today's world, however, such objects exist only in theory, and the implication of this fact is that every godforsaken thing in our lives, by virtue of its production by economic activity in a truly national market is of concern to our federal government.

But... such was not the case over a century ago. Certainly at that time such objects did exist; go back long enough and that would describe most things in one's home. The cruelly ironic twist, though, is that by virtue of technology, deep divisions of labor, and decreased barriers to trade, which contribute to a large proportion of our wealth, we have brought more of our lives under the expanded interpretation of the Commerce Clause. Thus, while free trade, technology, and division of labor have brought us freedom, it has, by accident, taken away some of our liberty.

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The point, as I gather it,

The point, as I gather it, is that governments will always find ways around the rules that bind them.

Interstate Commerce Clause:

Interstate Commerce Clause: A reductio ad absurdum
But I was thinking about it, and I saw another possibility. I can see California politicians, rather than try to actually get their own state government working, pushing for EU-style tax harmonization from the federal government under the banner of t...

This is a good point. In

This is a good point. In his dissent, Thomas claims that Raich's actions are beyond the scope of the commerce power because they don't have an effect on the national market. This is also the argument Randy Barnett made in arguing the case. But as you point out, this is clearly false.

I have not read the transcripts from the arguments, but I assume Barnett never argued that the test itself ("affects the interstate market") was wrong, nor did he mention that this effectively gives the federal government unlimited power over human activity. He really can't make these arguments before the Supreme Court, if he is to have any chance of winning at all, he must play by their rules and defer to their "wisdom".

I think this is why Scott says the Constitution is dead. The whole thing has become a joke. Barnett was not allowed to argue the REAL argument. Everybody involved knew the real argument, Thomas clearly knew it, but it was kept in the background. The public will never hear of it (not that this would matter much anyway).

Barnett was screwed from the get-go. Not being able to challenge the test itself, he was forced to pretend that these facts don't fit the bill. But they do, that's the genious of Wickard, it encompasses everything.