Blogs > Liberty and Power > Decision Soon on Raich vs. Ashcroft

Mar 28, 2005 10:33 pm

Decision Soon on Raich vs. Ashcroft

Rumor has it that the Supreme Court will issue a ruling on Raich vs. Ashcroft early this week. Drug WarRant has a review.

For those of you who don't recall, Raich is the medical marijuana case that has tested the limits of federalism and the commerce clause. Other links worth following come from Talk Left, Last One Speaks, and yours truly, who gives some thoughts on the origin of our commerce-clause woes. I write:
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.

Without quite realizing it, I was echoing Randy Barnett's Restoring the Lost Constitution, which I have been reading in the meantime. The relevant pages are 278-291.

[Crossposted at Positive Liberty.]

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