Opinion Editorial
June 20, 2005

By Jon Caldara

If you have a little vegetable garden, be afraid. Be very afraid. Since tomatoes are bought and sold across state lines, the federal government has the right to outlaw your tomato garden, quite literally.

Our Constitution was written as a unique political document in history. Its primary function was to guarantee what the federal government could not do. Our founders carefully listed what powers the feds could have. Article 1, Section 8 details those limited powers of Congress.

And to put an exclamation point on just how limited those powers are, the Founders added the Ninth Amendment, which basically says, “Look, if we haven’t made it clear enough already if it is not listed in the Constitution, the feds can’t do it.” Then they added the 10th Amendment, now known as the forgotten amendment, to reserve all other powers to the states.

Beyond the fun stuff of coining money, declaring war and running the Post Office, the Constitution gives the Congress the power to regulate commerce, including between the states. So now they can tell you not to grow tomatoes in your back yard. Here’s the story.

The “commerce clause” in the Constitution was rarely used until the 1930s. The high court kept the Congress’s lust for power in check. But with FDR’s threat to pack the court with his minions, the Supreme Court began allowing Congress to become the masters of the universe, with the commerce clause as their weapon of mass destruction.

In 1938 Congress passed the Agricultural Adjustment Act (stay with me, it about to get exciting). The act was meant to “control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices.” Those are command-and-control code words for regulating markets.

Then in 1941, an uppity farmer named Fillburn grew more than his allotted amount of wheat. Anti-American bastard. He grew the extra wheat not to bring to market, not to sell, not to cross state lines, but to simply consume himself. Apparently his family had this nasty addiction to eating.

His hideous act was brought all the way to FDR’s neutered Supreme Court. They of course ruled against him. Their tortured logic went something like this: Even though little Mr. Fillburn was only growing wheat for himself, it meant that he might not have to go into the marketplace to buy as much wheat for his personal use. And although he was just one little guy, if enough little guys did that maybe, just maybe, it would affect the supply and demand of wheat that crossed the state border. And when wheat crosses the state border, the feds can constitutionally regulate.

Ergo, (and other fancy legal terms) Congress has the right to tell Mr. Fillburn he can’t grow wheat on his own property for his own use.

A week ago the Supreme Court dusted off this insulting little ruling to empower congress to override state law on medical marijuana. Many anti-pot types celebrated the ruling without thinking about the underlying meaning. The case had little to do with medical marijuana. It had everything to do with states’ rights.

California, like Colorado, passed laws allowing for the use of medicinal marijuana. The pot must be grown by the registered user or his caregiver, so that it doesn’t cross state lines, evoking the wrath of Congress’s power to regulate.

But the Supremes found that if a handful of registered medical-marijuana users grew their own weed, it might somehow effect the demand on the black market for illegal drugs. Like the Columbian drug cartel is going to have a shooting street war with the 70-year-old glaucoma patient.

So using the Fillburn case as their guide, they found that six pot plants in a back yard is a danger to the inter-state market for illegal drugs. Ergo (and other fancy legal terms), Congress’s Controlled Substances Act of 1970 overrides a state’s 10th Amendment right to set its own laws on growing something in your back yard.

As Justice Thomas wrote in his dissent, “(The respondents) use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.”

Better start growing your tomatoes in your basement under grow-lights.