The Commerce Clause and Noncommercial Activity
Connecticut Lawyer Norm Pattis has Joined Crime & Federalism

The First Congress and Crime

We can best understand how wrong the government is in Raich if we take a brief look at first principles, and then observe how our first Congress applied those first principles.

Congress' enumerated powers did not include a police power.
It is axiomatic that Congress is limited to enumerated powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819).  The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961) ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”)  By definition, to enumerate some things is to exclude others.  The Founders listed – and therefore limited – Congress’ power to define and punish crimes.  Art. I, § 8, Cl. 6 (counterfeiting U.S. currency); Art. I, § 8, Cl. 10 (piracies and felonies committed on the high seas); Art. III, § 3, Cl. 2 (treason).  In each of these areas, Congress has a substantial and legitimate interest since only it may coin money; the high seas are of national import; and one can commit treason only against his country, not his state.

The first Congress recognized constitutionally imposed limitations on its powers.
The first Congress was mindful of enumerated powers and thus enacted only a few federal criminal offenses, mostly dealing with offenses involving felonies on the high seas, crimes committing on or against federal property, and conduct obstructing justice in federal cases.  See "An Act for the Punishment of certain Crimes against the United States."  1 Stat 112 (1790).  A close reading of the first federal crimes is telling.

Sections 1 & 2 punish treason against the United States.  Id. at 112.  Sections 3 & 7 do not punish the state crimes of murder or manslauther.  Rather, it only criminalizes murders committed in "any place *** under the sole and exclusive jurisdiction of the United States,"  id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal.  Id.  Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police.  Id.  Section 7 covers arson, but again, only against a building "under the sole and exclusive jurisdiction of the United States."  Id (emphasis added).  Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115.  Section 14 criminalizes counterfeiting.  Id. at 115.  Section 15 punishes acts affecting an official paper of a federal court.  Id. at 115-116.  Sections 16 & 17 punish theft-related acts occurring on any place under the "sole and exclusive jurisdiction of the United States."  Id. at 116. Sections 18-20 cover perjury committed in federal court.  Id. at 116-117.  Section 21 covers bribes against federal officials.  Id. at 117.  Section 22 criminalizes resisting arrest, but only where a federal official is the arresting officer.  Id.  Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.

The first criminal code teaches us that Congress may criminalize conduct in only two discreet circumstances.  First, Congress may criminalize conduct pursuant to a textual grant of power over criminal acts, e.g., Art. I, § 8, Cl. 6; Art. I, § 8, Cl. 10; Art. III, § 3, Cl. 2, above.  Second, Congress may criminalize conduct where the conduct occurs in a place within the exclusive domain or control of the federal government.  Thus, Congress was careful to cover acts committed only in places under the sole and exclusive jurisdiction of the United States.  Indeed, the second source of power is implied, since a state would lack authority to punish acts against the United States, e.g., a state could not criminalize theft of mail.

The non-commercial use of privately-grown medical marijuana does not fall under either of those two circumstances.  Indeed, though the first criminal code teaches us much about federal power, it also teaches us about proportion. 

Congress initially punished only serious crimes like rape, robbery, and murder.  Here, the federal government wants to punish a woman for self-medicating.  Not only is the the federal government's attempt unconstitutional, it's also uncommonly silly. 

We Americans face threats from domestic and international terrorism. Should our government's scare resources go towards fighting real dangers like the potential for biological terror on our homeland, or should Congress slay paper tigers, or is Ms. Raich's cases, paper angels?