Patterico on the Raich ruling

RE: my homegrown tomatoes

Wickard ruled that the federal government may put a quota on how much food a citizen can grow for personal use on his own property. You know: like they did in Communist Russia. The theory was that the government has the right to control the supply and demand of goods on the open market. Allowing citizens to grow their own food would reduce demand for that food on the open market, creating undesirable surpluses.

So I guess yesterday's decision won't change much, and the government can indeed tell me I must buy my tomatoes at Safeway.

I'm of two minds, myself, about the implications of Raich and Wickard. The fact that the government can tell me not to grow marijuana indoors, in my own home, for my own use, for whatever reason, is absurd, and a violation of my privacy. But my objection to this invasion is on the grounds of liberty, not federalism: I would want it to be beyond the powers of state or local governments to similarly restrict my rights. While I agree that Wickard's view of what constitutes inter-state commerce stretches the concept beyond recognition, and is therefore an unfair reading of the Constitution, I don't necessarily object to the principle of more Federal authority with respect to commerce, as long as that authority is consistent with personal civil and economic liberty.

The problem, as I see it, is that regardless of Wickard, the authority to tell an individual not to grow food on his own land, or not to grow marijuana in his own home for his own use, rests with some level of government. It is a problem for the coherence of US Constitutional case law that it rests with the Federal government, but it's problem for liberty that it rests anywhere.

(This is not to say that I think the issue of federalism is unimportant. I simply think that the most important objections to the example policies are based on individual liberty. There are those (see http://jgrr.blogspot.com/2005/06/banning-mary-jane.html) who think the Raich result was great, citing all the things we'd lose if the Federal government lost the ability to regulate things like worker safety, etc. I don't necessarily want to lose all those things either, but I'm uncomfortable with having that authority rest on what I consider a judicial contortion.)

It should be clear, of course, that I don't speak for my office -- nor am I a fan of the medicinal marijuana law. But I am a fan of reading the Commerce Clause as it was originally understood.

I never got a chance to respond to your excellent post a few days back about government legitimacy. I still hope to do so more completely, but my basic feeling is contained in a comment I left at my site:

Where liberals have gone wrong is in relying upon an expanding and mysterious group of "rights" the existence of which is subject to the whims of unelected judges. Conservatives would rather stake their claim to liberty on the premise that the authority granted to a centralized government is limited in scope. If that leaves power to the States, I'd rather trust the electorates of the States. At least they can change their minds. When judges read made-up rights into the Constitution, that can't be easily changed.

Patterico wrote:

It should be clear, of course, that I don't speak for my office -- nor am I a fan of the medicinal marijuana law. But I am a fan of reading the Commerce Clause as it was originally understood.

Yes, I wasn't implying that you spoke as a prosecutor, but it's nice to see a prosecutor come out against a ruling that increases prosecutions. I've replied to the rest of this in its own post.

This is ridiculous. Wickard involved a federal regulatory scheme involving a product that was legally involved in legal interstate commerce. And, from the opinion in the case, it was unclear where the product might go.

Raich involved a home-grown product. There was no legal interstate commerce in the product, and there was no suggestion that the product would have been transported interstate. Where was the interstate commerce issue? If there was a contention that some portion of the crop might have entered into interstate commerce the feds might have an issue. But there wasn't such a contention, so they didn't have an issue.

Raich involved a home-grown product. There was no legal interstate commerce in the product, and there was no suggestion that the product would have been transported interstate. Where was the interstate commerce issue?

Well imagine if everyone grew their own raj. Then there'd no interstate commerce in weed at all. Clearly the issue must be that they damaged illegal interstate ganja commerce by growing their own. This has got to stop!

But I jest. *L*

Oh, and, BTW, regarding "Wickard ruled that the federal government may put a quota on how much food a citizen can grow for personal use on his own property," that is totally incorrect. I've actually read the majority opinion in Wickard. Wickard involved a commercial farming operation and specifically stated that

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=111

In other words, the intended disposition of the wheat in question, grown on a commercial farming operation, was not stated. This case had nothing to do with the federal government putting a quota on how much food a citizen can grow for his or her personal use.

Dave, as long as the crop doesn't cross state boundaries, where's the power of the federal government to regulate it?

Oh, and, BTW, regarding "Wickard ruled that the federal government may put a quota on how much food a citizen can grow for personal use on his own property," that is totally incorrect. I've actually read the majority opinion in Wickard.

Glad to hear it. So have I. If you read it, then I'm sure you read this part:

It is urged that under the Commerce Clause of the Constitution, Article I, 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451, 132 A.L.R. 1430,12 sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm.

. . . .

The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture.

. . . .

This record leaves us in no doubt that Congress [317 U.S. 111, 129] may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

. . . .

One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.

I think your assertion that my assertion was "totally incorrect" was totally incorrect.