{"id":117477,"date":"2026-06-24T16:21:18","date_gmt":"2026-06-24T21:21:18","guid":{"rendered":"https:\/\/milesfortis.com\/?p=117477"},"modified":"2026-06-24T16:21:33","modified_gmt":"2026-06-24T21:21:33","slug":"117477","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=117477","title":{"rendered":""},"content":{"rendered":"

BLUF:
\nThe Court\u2019s reading of the Commerce Clause since\u00a0Wickard<\/em>\u00a0has had wide-ranging consequences for Americans\u2019 liberty and the powers the Constitution reserves to the states. Much federal overreach is accomplished in the name of this Clause, a provision that virtually no one, not even the Antifederalists, objected to at the time of the ratification debates. It\u2019s well past time for the Court to reassert the Clause\u2019s original meaning. Justice Thomas is leading the way.<\/p>\n

Twenty-One Years Later, Justice Thomas Is Still Right About the Commerce Clause.<\/a><\/p>\n

Marijuana stinks, enervates malaise into America\u2019s youth, and even has a tendency to induce panic attacks. But let it not be said that marijuana has no benefits. After all, thanks to marijuana, or more accurately, Congress\u2019s regulation of it, Justice Clarence Thomas<\/a>\u00a0has written opinions reminding Americans, and his fellow Justices, that Congress\u2019s powers are not unlimited.<\/p>\n

In a recently decided Supreme Court case called\u00a0United States v. Hemani<\/em>, the Court reversed a conviction of a man who had been prosecuted under a federal statute that prohibits anyone who uses a controlled substance from owning a firearm. The government prosecuted Ali Hemani under the statute because, while owning a firearm, he used marijuana.<\/p>\n

The majority opinion in\u00a0Hemani\u00a0<\/em>asked whether Hemani\u2019s prosecution violated his Second Amendment rights and found that it did. Justice Thomas agreed with that conclusion but wrote a separate concurring opinion in which he asked the more fundamental question: Did Congress have the authority to pass this law in the first place?<\/em><\/strong><\/p>\n

The Constitution vests in Congress certain powers, and Congress has no power not vested in it by the Constitution.<\/strong> When Congress passes a law, it must be able to point to a specific power enumerated in the Constitution that allows it to do so. When a representative introduces a bill, he must point to the specific section of the Constitution that permits him to do so, called a Constitutional Authority Statement. Although the Bill of Rights, including the Second Amendment, does place further limits on those congressional powers, the Bill of Rights is irrelevant where Congress lacks the power to pass a law in the first place.<\/p>\n

As Justice Thomas\u2019s concurring opinion explains, Congress likely lacked authority to pass the law at issue in the\u00a0Hemani<\/em>\u00a0case.<\/p>\n

The Commerce Clause empowers Congress to \u201cregulate commerce with foreign nations, and among the several states, and with the Indian tribes.\u201d As scholarship has made clear, and as Advancing American Freedom has\u00a0argued<\/a>\u00a0several times in amicus briefs, at the time of the founding, the word \u201ccommerce\u201d simply meant the trade of goods and \u201camong the several states\u201d meant \u2014 well \u2014 among the several states.<\/p>\n

In other words, the Commerce Clause allows Congress, as Justice Thomas\u00a0put it<\/a>, \u201cto regulate the buying and selling of goods and services trafficked across state lines.\u201d By the time Hemani owned his firearm, it was no longer in interstate commerce \u2014 it was not being bought or sold across state lines. As such, Congress had no power to regulate it under the Commerce Clause.<\/p>\n

Nor is this the first time Justice Thomas has had an opportunity to remind Americans about the Commerce Clause in a case involving marijuana. In a 2005 case called\u00a0Gonzales v. Raich<\/em>, federal officials, acting under a statute enacted by Congress supposedly under its Commerce Clause power, seized marijuana plants that individuals were growing in their backyards for personal medical use.<\/p>\n

<\/p>\n

How is growing something in one\u2019s own backyard within the scope of Congress\u2019s power to regulate trade across state lines? It\u2019s not. And yet the Court upheld the seizure, relying on a line of cases starting with one of the Court\u2019s most consequential and harmful decisions:\u00a0Wickard v. Filburn<\/em>.<\/p>\n

Wickard\u00a0<\/em>was a 1942 case in which the Court found that the Commerce Clause empowered Congress to set quotas for wheat production, even when that wheat never entered the market at all. In that case, Roscoe Filburn was penalized because he grew more wheat on his farm than he was allowed under the quota. Filburn did not grow the wheat to sell but for use on his farm. The Court nonetheless claimed that, in aggregate, farmers\u2019 growing of wheat in excess of the quota could have a \u201csubstantial effect\u201d on interstate commerce and thus was within Congress\u2019s purview under the Commerce Clause.<\/p>\n

Not only did the Court\u2019s decision conflict with the plain language of the Clause, but it also directly contradicted the Founders\u2019 assurances to the Antifederalists during the ratification debates. The Antifederalists were concerned that the proposed national government would swallow up state power. In response, Alexander Hamilton assured readers of\u00a0Federalist<\/em>\u00a0No. 17, \u201cthe supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.\u201d<\/p>\n

Justice Thomas was thus on firm footing when he dissented in\u00a0Raich<\/em>, arguing that Congress lacks the power to prohibit wholly local, noncommercial activity under the Commerce Clause. As he explained, \u201cIf Congress can regulate this under the Commerce Clause, then it can regulate virtually anything\u2014and the Federal Government is no longer one of limited and enumerated powers.\u201d<\/p>\n

Justice Thomas\u2019s opinions in\u00a0Hemani<\/em>\u00a0and\u00a0Raich<\/em>\u00a0are reminders that the Court\u2019s job is not to impose the policy outcomes a majority of its justices prefer but to interpret and apply the law as written. Whatever Justice Thomas, or anyone else, thinks of marijuana, the question for the Court is whether a law before it is within Congress\u2019s power to adopt.<\/p>\n

The Court\u2019s reading of the Commerce Clause since\u00a0Wickard<\/em>\u00a0has had wide-ranging consequences for Americans\u2019 liberty and the powers the Constitution reserves to the states. Much federal overreach is accomplished in the name of this Clause, a provision that virtually no one, not even the Antifederalists, objected to at the time of the ratification debates. It\u2019s well past time for the Court to reassert the Clause\u2019s original meaning. Justice Thomas is leading the way.<\/p>\n","protected":false},"excerpt":{"rendered":"

BLUF: The Court\u2019s reading of the Commerce Clause since\u00a0Wickard\u00a0has had wide-ranging consequences for Americans\u2019 liberty and the powers the Constitution reserves to the states. Much federal overreach is accomplished in the name of this Clause, a provision that virtually no one, not even the Antifederalists, objected to at the time of the ratification debates. It\u2019s … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15,23,8],"tags":[],"class_list":["post-117477","post","type-post","status-publish","format-standard","hentry","category-business","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117477","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=117477"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117477\/revisions"}],"predecessor-version":[{"id":117478,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117477\/revisions\/117478"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=117477"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=117477"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=117477"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}