Positive Liberty

My National Novel Writing Month is almost over. Oddly, it’s given me new enthusiasm for doing plain-old vanilla blogging again, and some topics are just too good to pass up. I know, I know, I’ve missed a lot of big stories this month, passed up many interesting discussions, and probably alienated a number of bloggers who might otherwise have been friendly. For that I offer my sincere apologies. With that said, though, I’m almost back in the saddle. Outside the novel, here is what’s been on my mind recently:

I belong to a generation whose earliest political memories include scenes of Ronald Reagan at the Brandenburg Gate, of the largely peaceful revolutions in Eastern Europe, and of the Berlin Wall coming down. For us at least, there is still something satisfying, something almost too good to be true about the end of the Cold War.

When we see history repeating itself–as it now seems to be doing in Ukraine–there can be no doubt about what we’re going to think. Democrats, Republicans, Libertarians, and others–We’re all with the opposition here. The real test of a democracy is whether the people are willing to take to the streets to protect it, because ultimately nothing else will do. Worthless as it may sound, I wish the Ukrainians all the best, and if anyone knows of a way to help more directly, please let me know. I will be sure to pass it along.

While the Ukrainians fight for even the basics of a limited government, over here we are arguing about the implementation, and I find these arguments no less fascinating. I speak, of course, of Raich vs. Ashcroft, which has the potential to become one of the biggest court cases of the new century. At issue is whether federal law may prohibit a private individual from growing and consuming marijuana for personal medical reasons.

It’s a gripping case on many different levels. Angel Raich’s doctor has declared to the courts that Raich risks death if she stops using marijuana to treat her chronic pain, nausea, and paralysis. She has tried dozens of other remedies, all to no avail. Only cannabis works, and, in her case at least, it appears to work remarkably well. On the other side, outgoing Attorney General John Ashcroft is shown precisely at his reactionary worst–a tyrant, taking medicine away from a desperately ill and remarkably law-abiding woman.

The Supreme Court is no doubt cognizant of these facts, but the real question lies elsewhere, and it may be stated as follows: Does the federal government possess the power to regulate the private growth and consumption of cannabis under the interstate commerce clause, even when no interstate transportation or commercial activity is present?

Frankly, historical precedent favors Mr. Ashcroft. In Wickard vs. Filburn (1942), the Supreme Court issued a ruling that is likely to control in this situation: Responding to a petitioner who argued that the Agricultural Adjustment Act’s wheat quotas did not apply to wheat that was never intended for sale, the Court ruled that even non-commercial activity could be regulated under the interstate commerce clause, provided that it exercised an indirect effect upon interstate commerce.

Upon the thin reed of indirect economic effects, a mountain of jurisprudence has arisen. Not only has this case spawned virtually the entire federal regulatory regime of the intervening years, but it has also been the basis for, improbably enough, the civil rights cases of the mid-20th century: Because discrimination in some way alters interstate commerce, and because, in the case of purely in-state actions, discrimination indirectly alters interstate commerce, it has been found that Congress has the power to regulate racially discriminatory practices.

While racial discrimination may be despicable, and while prohibiting it may be a legitimate government action–and I do agree on both counts–still, one has to wonder whether the interstate commerce clause was the best justification that the government could find. Not only does it feel ad hoc, it exposes the sheer unlimited power of the clause as it is now interpreted.

Under decisions like these, the interstate commerce clause has grown enormously in scope, and it seems that by now it can be used to justify the regulation of virtually anything. If noncommercial wheat and marijuana are both subject to congressional control, then one may easily imagine Congress re-enacting an alcohol prohibition, too: If the commerce clause truly possesses such sweeping power, then the Eighteenth Amendment is unnecessary–and the Twenty-First is entirely moot.

As I see it, the entire conundrum rests on two tragic errors.

First, it’s time to admit, I think, that Wickard was wrongly decided. Yes, a tremendous weight of settled law rests upon this case. But rather than bolstering the need for Wickard, these subsequent cases have only demonstrated the vast scope of the underlying error: If Congress can regulate anything with indirect effects upon interstate commerce, then Congress can regulate anything, period.

Under Wickard, there is no sphere of human activity where we citizens are truly at liberty. This cannot possibly reflect the spirit of our Constitution, whose every concern elsewhere is for the setting of proper limits on the federal government’s intrusive power. The commerce clause must not be understood in isolation; properly speaking, it can only be read in light of the document that bears it, and the many limitations that the document elsewhere demands.

With one exception–1995’s U.S. vs. Lopez (Er, two exceptions, including U.S. vs. Morrison in 2000)–post-Wickard jurisprudence has done nothing to rein in the ever-expanding bubble of federal power that has emerged in the meantime. As a result, the government in Washington has become a vast, glitzy dispensary of regulatory favor. Only the inveterate tendency of all Americans to organize into competing interest groups has allowed for some check on the expanding powers of Congress, as that body is forced, by dint of competition among lobbyists, to reach compromises that do not quite give away the farm. So far it has managed, but barely.

The second great error goes back to the original draft of the Constitution itself–and to a set of attitudes that long predate it. In 1787, economics was still very much a mysterious science. The Wealth of Nations was only eleven years old, and economic fallacy was far more common than economic wisdom, even among the self-proclaimed experts of the day.

One of the most pervasive misconceptions of the time was the idea that “commerce” represented a discrete sphere of human action. In truth, commerce is no such thing, then or now, but the governments of the age seldom understood commerce as it should be. Hence the government of England passed the Corn Laws, which spawned pernicious effects in areas where they least were expected; hence the government of France proclaimed that nobles would forfeit their titles if they ever engaged in the vulgar practice of “commerce”–while the nobles themselves constantly invented new ways of engaging in commerce without violating the ever-too-narrow laws of derogation. They bought shares in joint stock companies, which themselves were a new invention; they managed the so-called property of others at a compensation of 100% profit; they obtained exemptions to declare a given activity “non-commercial” wherever such exemptions were possible. In short, they did whatever they could to enter commerce, and they found that doing it was easier than anyone had guessed.

To later economic thinkers, these actions proved beyond a shadow of doubt that all things can be made into commerce: All human activity goes on in a seamless web of give and take, sometimes with money, sometimes without. Today we understand that “commerce” is not so much a separate sphere of human activity as it is a way of thinking about our actions. We now view economics as a tool for analyzing the entire interconnected web of human behavior–much as we also view anthropology, psychology, or comparative history, each of which approaches that web from a different perspective.

Indeed, we would find it absurd to ask which behaviors were not psychological or historical. To us, all action has a psychological dimension, and all action is a part of history, for all human action may properly be considered from a psychological or a historical standpoint. We would never dream of giving Congress the power to regulate all psychological activity–and yet, in giving Congress the power to regulate all economic activity, we have done precisely the same.

But in 1787, it was taken virtually for granted that economics was merely a thing to be done in the marketplace, and that “commerce” was best understood in isolation from the rest of human life. The contradictions to this worldview were piling up all around, but the new insight had not yet arrived. Conventional wisdom, from the dawn of the so-called ‘political arithmetic’ in the seventeenth century, all the way through the late Enlightenment, held that “commerce” was a limited thing.

In other words, today’s trouble with the commerce clause rests on a misunderstanding that predates the republic. Within their limited worldview, the framers intended nothing more than to give Congress a well-defined power over one branch of human life–and that only in one special instance. They never dreamed that two centuries of new social insight would turn the interstate commerce clause into the most powerful sixteen words in the entire Constitution.

The remedy for this situation is far from clear. One might conceivably go back to pre-Wickard jurisprudence (as this brief argues), but having to argue and re-argue all of the subsequent precedents must really be a fearsome deterrent to this idea. One might attempt to find some new, post-Wickard way of limiting the scope of the commerce clause, but it seems to me at least that any such limitation would have to be entirely arbitrary.

And then there is the ultimate remedy, amending the Constitution. I’m going to go out on a limb here and make a wide-ranging prediction: I predict that within fifty years, the Constitution will be amended to replace or to radically alter the interstate commerce clause, a provision that is flawed in the extreme and ultimately unworkable from the standpoint of limited government. Failing this prediction, I envision that the regulatory state will encompass every sphere of human life, leading to nothing less than a de facto communism. And the rest of the Constitution–crafted with the clear intent of limiting federal power–will be nothing more than a long list of pleasant wishes.

Can one badly decided case, based on a badly worded section of the Constitution, which itself rests on an archaic view of human nature–can the weight of these errors really be enough to deprive Angel Raich of the medicine she needs to stay alive? That’s the short-term question. The long view is, if anything, even more distressing: Can this train of misunderstanding really be enough to wipe out the clear intent of virtually every other clause in the Constitution? I should hope not. But then, marijuana is some scary stuff, and you can never be too careful.

Update: Thanks to Kip Esquire and In The Agora for the links. Legal Theory Blog has a rough account of the oral arguments. Randy Barnett, arguing Raich’s case, did not make the far-reaching argument I’ve outlined above; this type of thing doesn’t win Supreme Court cases until it’s been percolating through law schools for at least a couple of decades. On the contrary, Barnett insisted that the activity in question was not fundamentally economic. The government argued the opposite–and that, if anything, the powers granted under Wickard did not go far enough. So much for small-government, states’-rights Republicans. Dahlia Lithwick covers the arguments in the Raich case with a bit more snark in “Dude, Where’s My Integrity?” [Bumped to the top; this post is getting a lot of attention, and I'd be happy if it got more.]