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 crimiminalize 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 medicial 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 intially 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?

Comments

[Jake Minton]

I don't understand why our nation has come to this. How can the government spend so much time, energy, and taxpayer money on something so ridiculous. I know I don't want my tax money going toward something like punishing medicinal, or even recreational, marijuana users. It's absurd. I am ashamed of my country. It saddens me. No, more than that, it sickens me. I'm disgusted to no end that we must endure something as asinine as this when we've got real trouble to deal with in the United States. Not to discredit what I'm saying but I know first-hand what it's like to have the government ruin you by calling you a criminal and prosecuting you for the "crime" of possession of marijuana. I once had a good job as a security officer. I was the best officer in the company, and those are not my words. I was told that by my superiors and was about to be promoted to a higher rank. Then I was pulled over one night and the police ransacked my vehicle and found less than a gram of marijuana in a pipe and arrested me. The arrest cost me my job, my reputation, and my freedom. 18 months of probation was my sentence since I had no prior convictions. That's 18 months that I can no longer enter an establishment that derives it's main source of income from alcohol, meaning, I can't go have a drink with friends if I want. My "crime" was not alcohol related. I didn't kill, rape, or steal from anyone. I paid my taxes. I thought I lived in a free country. I'm not here to claim I have a medical condition that is helped by marijuana. I'm here to claim that I was a good, tax paying citizen who helped the local police force uphold the law in my community and was stripped of that priviledge/honor because I choose to smoke marijuana recreationally. I am not a criminal but the government has made me one. I am not a bad person yet the law says I am. I have lost my love for my country and would very much like to go and live somewhere that I truly CAN be free but I'm not allowed to leave the county I live in for the next 17 months. Give me liberty or give me death. I would rather die than have to suffer the loss of my freedom in a country that claims to be the land of the free. I am now ashamed to call myself an American over this. We are not in the land of the free. Perhaps we never were. Or, at least, that window of opportunity has long since come and gone. Thank you.