Reader Week 1

7/28/2019 Reader Week 1

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Selections from Aristotle, The Politics (Book 1)

Part I

Every state is a community of some kind, and every community is established with a

view to some good; for mankind always act in order to obtain that which they think good.But, if all communities aim at some good, the state or political community, which is thehighest of all, and which embraces all the rest, aims at good in a greater degree than any

other, and at the highest good.

Some people think that the qualifications of a statesman, king, householder, and masterare the same, and that they differ, not in kind, but only in the number of their subjects.

For example, the ruler over a few is called a master; over more, the manager of ahousehold; over a still larger number, a statesman or king, as if there were no difference

between a great household and a small state. The distinction which is made between theking and the statesman is as follows: When the government is personal, the ruler is a

king; when, according to the rules of the political science, the citizens rule and are ruledin turn, then he is called a statesman.

But all this is a mistake; for governments differ in kind, as will be evident to any one who

considers the matter according to the method which has hitherto guided us. As in otherdepartments of science, so in politics, the compound should always be resolved into the

simple elements or least parts of the whole. We must therefore look at the elements ofwhich the state is composed, in order that we may see in what the different kinds of rule

differ from one another, and whether any scientific result can be attained about each oneof them.

Part II

...The family is the association established by nature for the supply of men's everyday

wants, and the members of it are called by Charondas 'companions of the cupboard,' andby Epimenides the Cretan, 'companions of the manger.' But when several families are

united, and the association aims at something more than the supply of daily needs, thefirst society to be formed is the village. And the most natural form of the village appears

to be that of a colony from the family, composed of the children and grandchildren, whoare said to be suckled 'with the same milk.' And this is the reason why Hellenic states

were originally governed by kings; because the Hellenes were under royal rule beforethey came together, as the barbarians still are. Every family is ruled by the eldest, and

therefore in the colonies of the family the kingly form of government prevailed becausethey were of the same blood. As Homer says:

"Each one gives law to his children and to his wives. "

For they lived dispersedly, as was the manner in ancient times. Wherefore men say that

the Gods have a king, because they themselves either are or were in ancient times underthe rule of a king. For they imagine, not only the forms of the Gods, but their ways of life

to be like their own.


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When several villages are united in a single complete community, large enough to benearly or quite self-sufficing, the state comes into existence, originating in the bare needs

of life, and continuing in existence for the sake of a good life. And therefore, if the earlierforms of society are natural, so is the state, for it is the end of them, and the nature of a

thing is its end. For what each thing is when fully developed, we call its nature, whether

we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thingis the best, and to be self-sufficing is the end and the best.

Hence it is evident that the state is a creation of nature, and that man is by nature apolitical animal. And he who by nature and not by mere accident is without a state, is

either a bad man or above humanity; he is like the "Tribeless, lawless, hearthless one, "whom Homer denounces- the natural outcast is forthwith a lover of war; he may be

compared to an isolated piece in checkers.

Now, that man is more of a political animal than bees or any other gregarious animals isevident. Nature, as we often say, makes nothing in vain, and man is the only animal

whom she has endowed with the gift of speech. And whereas mere voice is but anindication of pleasure or pain, and is therefore found in other animals (for their nature

attains to the perception of pleasure and pain and the intimation of them to one another,and no further), the power of speech is intended to set forth the expedient and

inexpedient, and therefore likewise the just and the unjust. And it is a characteristic ofman that he alone has any sense of good and evil, of just and unjust, and the like, and the

association of living beings who have this sense makes a family and a state.

Further, the state is by nature clearly prior to the family and to the individual, since thewhole is of necessity prior to the part; for example, if the whole body be destroyed, there

will be no foot or hand, except in an equivocal sense, as we might speak of a stone hand;for when destroyed the hand will be no better than that. But things are defined by their

working and power; and we ought not to say that they are the same when they no longerhave their proper quality, but only that they have the same name. The proof that the state

is a creation of nature and prior to the individual is that the individual, when isolated, isnot self-sufficing; and therefore he is like a part in relation to the whole. But he who is

unable to live in society, or who has no need because he is sufficient for himself, must beeither a beast or a god: he is no part of a state. A social instinct is implanted in all men by

nature, and yet he who first founded the state was the greatest of benefactors. For man,when perfected, is the best of animals, but, when separated from law and justice, he is the

worst of all; since armed injustice is the more dangerous, and he is equipped at birth witharms, meant to be used by intelligence and virtue, which he may use for the worst ends.

Wherefore, if he have not virtue, he is the most unholy and the most savage of animals,and the most full of lust and gluttony. But justice is the bond of men in states, for the

administration of justice, which is the determination of what is just, is the principle oforder in political society.


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7/8/13 Smaller States Find Outsize Clout Growing in Senate - Interactive - NYTimes.com

www.nytimes.com/interactive/2013/03/11/us/politics/democracy-tested.html#/#smallstate

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The disproportionate power enjoyed in the Senate by small states is playing a growing role in the political dynamic on

issues as varied as gun control, immigration and campaign finance.

By Adam Liptak

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PoliticsWORLD U.S. N.Y. / REGION BUSINESS TECHNOLOGY SCIENCE HEALTH SPORTS OPINION ARTS STYLE TRAVEL JO BS REAL ESTATE AUTO

Big State, Small State

RUTLAND, Vt. In the four years after the financial crisis struck, a great

wave of federal stimulus money washed over Rutland County. It helped

pay for bridges, roads, preschool programs, a community health center,

buses and fire trucks, water mains and tanks, even a project to make sure

fish could still swim down the river while a bridge was being rebuilt.

Just down Route 4, at the New York border, the landscape abruptly turns

from spiffy to scruffy. Washington County, N.Y., which is home to about

60,000 people just as Rutland is saw only a quarter as much money.

We didnt receive a lot, said PeterAust, the president of the local

chamber of commerce on the New York side. We never saw any ofthe

positive impact of the stimulus funds.

Vermonts 625,000 residents have two United States senators, and so doNew Yorks 19 million. That means that a Vermonter has 30 times the

voting power in the Senate of a New Yorker just over the state line the

biggest inequality between two adjacent states. The nations largest gap,

between Wyoming and California, is more than double that.

The difference in the fortunes of Rutland and Washington Counties

reflects the growing disparity in their citizens voting power, and it is not

an anomaly. The Constitution has always given residents of states with

small populations a lift, but the size and importance of the gap has grown

markedly in recent decades, in ways the framers probably never

anticipated. It affects the political dynamic of issues as varied as gun

control, immigration and campaign finance.

In response, lawmakers, lawyers and watchdog groups have begun pushing

for change. A lawsuit to curb the small-state advantage in the Senates

rules is moving through the courts. The Senate has already made modest

changes to rules concerning the filibuster, which has particularly benefited

senators from small states. And eight states and the District of Columbia

have endorsed a proposal to reduce the chances that the small-state

advantage in the Electoral College will allow a loser of the popular vote to

win the presidency.

To be sure, some scholars and members of Congress view the small-state

advantage as a vital part of the constitutional structure and say the growth

of that advantage is no cause for worry. Others say it is an authentic but

insoluble problem.

Articles in this series are examining challenges to the

American promise that all citizens have an equal voice

in how they are governed.

Previous Articles:

How Maps Helped House Republicans

The Vanishing Battleground

Error and Fraud as Absentee Voting Rises

TimesCast: The Times's Adam Liptak on the growing

advantage less populated states enjoy in the Senate.

Biggest Gap of All

A Compromise

Barrier to Change

Small States Win

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What is certain is that the power of the smaller states is large and growing.

Political scientists call it a striking exception to the democratic principle of

one person, one vote. Indeed, they say, the Senate may be the least

democratic legislative chamber in any developed nation.

Nathaniel Brooks for The New York T imes

At left, the view toward Vermont from Washington County, N.Y., left. Vermont got much more

federal stimulus money than larger s tates. We never s aw any of the positive impact of the

stimulus funds, said Peter Aust, top right, a chamber of commerce president for Washington

County, N.Y. Bottom right, Rutland. Vt., has been a big recipient of federal aid, including for

buses.

Behind the growth of the advantage is an increase in population gap

between large and small states, with large states adding many more people

than small ones in the last half-century. There is a widening demographic

split, too, with the larger states becoming more urban and liberal, and the

smaller ones remaining rural and conservative, which lends a new

significance to the disparity in their political power.

The threat of the filibuster in the Senate, which has become far more

common than in past decades, plays a role, too. Research by two political

scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state

senators, often in leadership positions, have amplified their power by

using the filibuster more often than their large-state counterparts.

Beyond influencing government spending, these shifts generally benefit

conservative causes and hurt liberal ones. When small states block or

shape legislation backed by senators representing a majority of Americans,

most of the senators on the winning side tend to be Republicans, because

Republicans disproportionately live in small states and Democrats,

especially African-Americans and Latinos, are more likely to live in large

states like California, New York, Florida and Illinois. Among the nations

five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and

the Dakotas have each voted Republican in every presidential election

since 1968.

Recent bills to overhaul the immigration system and increase disclosure of

campaign spending have won the support of senators representing a

majority of the population but have not yet passed. A sweeping climate

bill, meant to raise the cost of carbon emissions, passed the House, where

seats are allocated by population, but not the Senate.

Each of those bills is a major Democratic Party priority. Throughout his

second term, President Obama is likely to be lining up with a majority of

large-state Congress members on his biggest goals and against a majority

of small-state lawmakers.

It is easiest to measure the small-state advantage in dollars. Over the past

few years, as the federal government has spent hundreds of billions to

respond to the financial crisis, it has done much more to assist the

residents of small states than large ones. The top five per capita recipients

of federal stimulus grants were states so small that they have only a single

House member.

From highway bills to homeland security, said Sarah A. Binder, a
http://home.gwu.edu/~binder/http://www.presidency.ucsb.edu/showelection.php?year=1968http://web.missouri.edu/~overbyl/http://faculty.rmc.edu/lbell/public_html/


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political scientist at George Washington University, small states make out

like bandits.

Here in Rutland, the federal government has spent $2,500 per person

since early 2009, compared with $600 per person across the state border

in Washington County.

As the money started arriving, Senator Bernard Sanders, the Vermont

independent, took credit for having delivered a hefty share of the national

funding. Senator Kirsten Gillibrand, a New York Democrat,vowed to

fight for her states fair share.

As a matter of constitutional design, small states have punched above their

weight politically for as long as the United States has existed. The founding

of the country depended in part on the Great Compromise, which created a

legislative chamber the Senate in which every state had the same

political voice, regardless of population. The advantage small states enjoy

in the Senate is echoed in the Electoral College, where each state is

allocated votes not only for its House members (ref lecting the states

population) but also for its senators (a two-vote bonus).

No one expects the small-state advantage to disappear, given its

constitutional roots. But its growing importance has caused some large-

state policy makers and advocates for giving all citizens an equal voice in

democracy to begin exploring ways to counteract it. Those pushing for

change tend to be Democrats.

One plan, enacted into law by eight states and the District of Columbia,

would effectively cancel the small states Electoral College edge. The nine

jurisdictions have pledged to allocate their 132 electoral votes to the

winner of the national popular vote if they can persuade states with 138

more votes to make the same commitment. (That would represent the bare

majority of the 538 electoral votes needed for a presidential candidate to

prevail.)

The states that have agreed to the arrangement range in size from

Vermont to California, and they are dominated by Democrats. But support

for changing the Electoral College cuts across party lines. In a recent

Gallup Poll, 61 percent of Republicans, 63 percent of independents and 66

percent of Democrats said they favored abolishing the system andawarding the presidency to the winner of the popular vote.

In 2000, had electoral votes been allocated by population, without the

two-vote bonuses, Al Gore would have prevailed over George W. Bush.

Alexander Keyssar, a historian of democracy at Harvard, said he would not

be surprised if another Republican candidate won the presidency while

losing the popular vote in coming decades, given the structure of the

Electoral College.

Critics of the outsize power of small states have also turned to the courts.

In December, four House members and the advocacy group Common

Cause filed an appeal in a lawsuit challenging the Senates filibuster rule on

the ground that it upsets the balance in the Great Compromise that

created the Senate.

The filibuster has significantly increased the underrepresentation of

people living in the most populous states, the suit said. But for the rule, it

said, the Dream Act, which would have given some immigrants who arrived

illegally as children a path to legalization, and the Disclose Act, requiring

greater reporting of political spending, would be law.

A federal judge in Washington dismissed the suit, saying he was powerless

to address what he acknowledged was an important and controversial

issue. The judge instead sided with lawyers for the Senate, who said that

the challengers lacked standing to sue and that the courts lacked power to

rule on the internal workings of another branch of the government.
http://sblog.s3.amazonaws.com/wp-content/uploads/2012/12/Sullivan-filibuster-ruling-12-21-12.pdfhttp://www.hks.harvard.edu/about/faculty-staff-directory/alex-keyssarhttp://www.gallup.com/poll/159881/americans-call-term-limits-end-electoral-college.aspxhttp://www.nationalpopularvote.com/http://www.gillibrand.senate.gov/newsroom/press/release/senator-gillibrand-announces-more-than-194-million-for-community-health-centers-in-new-yorkhttp://www.sanders.senate.gov/newsroom/news/?id=3a5fc21e-8cd4-4df8-aebd-46e269e189c3


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However these individual efforts fare, the basic disparity between large

and small states is wired into the constitutional framework. Some scholars

say that this is as it should be and that the advantages enjoyed by small

states are necessary to prevent them from becoming a voiceless minority.

Without it, wealth and power would tend to flow to the prosperous coasts

and cities and away from less-populated rural areas, said Stephen

Macedo, a political scientist at Princeton.

Gary L. Gregg II, a political scientist who holds the Mitch McConnell Chair

in Leadership at the University of Louisville, similarly argued that urban

areas already have enough power, as the home of most major governmentagencies, news media organizations, companies and universities. A

simple, direct democracy will centralize all power, he wrote recently, in

urban areas to the detriment of the rest of the nation.

Others say the country needs to make changes to preserve its democratic

vitality. They have called for an overhaul of the Constitution, as far-

fetched an idea as that may be.

The Senate constitutes a threat to the vitality o f the American political

system in the 21st century, said Sanford Levinson, a law professor at the

University of Texas, and it warrants a constitutional convention to rectify

it.

Frances E. Lee, a political scientist at the University of Maryland, said theproblem was as real as the solution elusive, adding that she and other

scholars have tried without success to find a contemporary reason to

exempt the Senate from the usual rules o f granting citizens an equal voice

in their government. I cant think of any way to justify it based on

democratic principles, Professor Lee said.

The Biggest Gap of All

Max Whittaker for The New York Times

HOMELESS IN FRESNO The city of half a million suffers from an array of social problems.

Fresno, Calif., is a city of a half-million people with a long list of problems,

including 14 percent unemployment, the aftermath of a foreclosure crisis,

homeless encampments that dot the sun-blasted landscape and worries

about the safety o f the surrounding countys drinking water.

A thousand miles away, a roughly comparable number of people inhabit

the entire state of Wyoming. Like Fresno and its environs, Wyoming is

rural, with an economy largely based on agriculture. It is also in much

better shape than Fresno, with an unemployment rate around 5 percent.
https://www.bsos.umd.edu/gvpt/lee/http://www.utexas.edu/law/faculty/svl55/http://www.politico.com/story/2012/12/keep-electoral-college-for-fair-presidential-votes-84651.htmlhttp://louisville.edu/mcconnellcenter/about/staff/gregghttp://www.princeton.edu/~macedo/


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Even so, Wyoming receives far more assistance from the federal

government than Fresno does. The half-million residents of Wyoming also

have much more sway over federal policy than the half-million residents of

Fresno. The vote people in Fresno remember best was taken in 2007,

when an immigration overhaul bill that included a guest worker program

failed in the Senate. Both agricultural businesses and leaders of Fresnos

large Hispanic population supported the bill, much as polls suggested a

majority of Americans did.

But the immigration bill died in the Senate after a 53-46 vote rejecting a

bid to move the bill forward to final passage. Wyomings two senators

were in the majority and Californias two senators on the losing side.

Had the votes been allocated by population, the result would have been

lopsided in the other direction, with 57 votes in favor and 43 against.

Even 57 votes would not have been enough to overcome a f ilibuster, which

requires 60. In the last few years, 41 senators representing as little as a

third of the nations population have frequently blocked legislation, as the

filibuster (or the threat of it) has become a routine part of Senate business.

Beyond the filibuster, senators from Wyoming and other small states

regularly oppose and often thwart programs popular in states with vastly

bigger populations. The 38 million people who live in the nations 22

smallest states, including Wyoming, are represented by 44 senators. The

38 million residents of California are represented by two senators.

In one of every 10 especially consequential votes in the Senate over the

two decades ending in 2010, as chosen by Congressional Quarterly, the

winning side would have lost had voting been allocated by population. And

in 24 of the 27 such votes, the majority of the senators on the winning side

were Republicans.

David Mayhew, a political scientist at Yale, cautioned that the political

benefit to Republicans is quite small as well as quite stable, adding that it

is important not to lose sight of small blue states like Delaware, Hawaii,

Rhode Island and Vermont. But he acknowledged that small states of both

political stripes receive disproportionate federal benefits. Professor Lee,

an author of Sizing Up the Senate: The Unequal Consequences of Equal

Representation, argues that the partisan impact of the small-stateadvantage is larger. There is a Republican tilt in the Senate, she said.

The way Republicans are distributed across the nation is more ef ficient,

she added, referring to the more even allocation of Republican voters,

allowing them to form majorities in small-population states. Democrats

are more tightly clustered, especially in large metropolitan areas.

Born of a Compromise
http://press.uchicago.edu/ucp/books/book/chicago/S/bo3636044.htmlhttp://politicalscience.yale.edu/people/david-mayhewhttp://www.nytimes.com/2007/06/28/washington/28cnd-immig.html?_r=0http://www.nytimes.com/2007/05/25/us/25poll.html?pagewanted=all


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Jim Wilson/The New York Times

OUTSIZE CLOUT Cody, Wyo., a state that enjoys disproportionate power in the Senate.

Equal representation of the states in the Senate is a consequence of the

Great Compromise, the 1787 deal that resolved a seemingly intractable

dispute between the smaller states and a handful of large ones like

Massachusetts, Pennsylvania and Virginia. But the country was very

different then. The population was about four million, and the maximum

disparity in voting power between states was perhaps 11 to 1. It is now six

times greater than that. Even scholars who criticize how voting power is

allocated in the Senate agree that parts of its design play an important role

in the constitutional structure. With its longer terms and fewer members,

the Senate can, in theory, be more collegial, take the long view and be

insulated from passing passions.

But those qualities do not depend on unequal representation among

people who live in different states. The current allocation of power in the

Senate, many legal scholars and political scientists say, does not protect

minorities with distinctive characteristics, much less disadvantaged ones.

To the contrary, the disproportionate voting power of small states is a sort

of happenstance that has on occasion left a stain on the nations history.

Robert A. Dahl, the Yale political scientist, who is 97 and has been studying

American government for more than 70 years, has argued that slavery

survived thanks to the disproportionate influence of small-populationSouthern states. The House passed eight antislavery measures between

1800 and 1860; all died in the Senate. The civil rights movement of the

mid-20th century, he added, was slowed by senators representing small-

population states.

As the population of the United States has grown a hundredfold since the

founding, to more than 310 million, the Supreme Court has swept away

most instances of unequal representation beyond the Senate. In a series of

seminal cases in the 1960s, the court forbade states to give small-

population counties or districts a larger voice than ones with more people,

in both state legislatures and the House.

The conception of political equality from the Declaration of

Independence, to Lincolns Gettysburg Address, to the Fifteenth,Seventeenth, and Nineteenth Amendments can mean only one thing one

person, one vote, Justice William O. Douglaswrote for the court in 1963,

referr ing to the amendments that extended the franchise to blacks and

women and required the popular election of the Senate.

The rulings revolutionized American politics everywhere but in the

Senate, which the Constitution protected from change and where the

disparities in voting power have instead become more extreme.

A Barrier to Change

In his memoirs, Chief Justice Earl Warren described the cases from the

1960s establishing the equality of each citizens vote as the most important

achievement of the court he led for 16 years. That made them more

important in his view than Brown v. Board of Education, which ordered

the desegregation of public schools, and Gideon v. Wainwright, which

guaranteed lawyers for poor people accused of serious crimes.

Legislators represent people, not trees or acres, Chief Justice Warren

wrote for the court in 1964, rejecting the argument that state senators, like

federal ones, could represent geographic areas with varying populations.

Legislators are elected by voters, not farms or cities or economic

interests.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0377_0533_ZS.htmlhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0372_0335_ZS.htmlhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0347_0483_ZS.htmlhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=372&invol=368http://politicalscience.yale.edu/people/robert-dahl


12/45



AMANDA COX and DEREK WILLIS contributed reporting; Produced By NICKI JHABVALA

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Applying that principle to the Senate would be very hard. Even an ordinary

constitutional amendment would not do the trick, as the framers of the

Constitution went out of their way to require states to agree before their

power is diminished.Article V of the Constitution sets out the procedure

for amendments and requires a two-thirds vote of both houses of

Congress or action by two-thirds of state legislatures to get things started.

But the article makes an exception for the Senate. No state, without its

consent, shall be deprived of its equal suffrage in the Senate, the article

concludes.

The United States Senate is hardly the only legislature that does not stick

strictly to the principle of equal representation. Political scientists use the

term malapportioned to describe the phenomenon, and it is common

around the world.

But the Senate is in contention for the least democratic legislative

chamber. In some other countries with federal systems, in which states or

provinces have independent political power, a malapportioned upper

house may have only a weak or advisory role. In the United States, the

Senate is at least equal in power to the House, and it possesses some

distinctive responsibilities, like treaty ratification and the approval of

presidential appointments. A recent appeals court decision severely

limiting the presidents power to make recess appointments, if it stands,

will further increase the Senates power.

Professor Dahl has calculated the difference between the local government

unit with the most voting power and that with the least. The smallest ratio,

1.5, was in Austria, while in Belgium, Spain, India, Germany, Australia and

Canada the ratio was never higher than 21 to 1.

In this country, the ratio between Wyomings representation and

Californias is 66 to 1. By that measure, Professor Dahl found, only Brazil,

Argentina and Russia had less democratic chambers. A separate analysis,

byDavid Samuels and Richard Snyder, similarly found that geographically

large countries with federal systems tend to overrepresent sparsely

populated areas.

This pattern has policy consequences, notably ones concerning the

environment. Nations with malapportioned political systems have lower

gasoline taxes (and lower pump prices) than nations with more equitable

representation of urban constituencies, two political scientists, J.

Lawrence Broz and Daniel Maliniak, wrote in a recent study. Such

countries also took longer to ratify the Kyoto Protocol on climate change,

if they ratified it at all. These differences were, they wrote, a consequence

of the fact that rural voters in industrialized countries rely more heavily

on fossil fuels than urban voters.

In 2009, the House of Representatives narrowly approved a bill to address

climate change, but only after months of horse-trading that granted

concessions and money to rural states. That was an example, Mr. Broz and

Mr. Maliniak said, of compensating rural residents for the burdens of

reducing greenhouse-gas emissions.

But it was not enough. The bill died in the Senate.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1642499http://www.wm.edu/offices/itpir/trip/meet_the_team/maliniak_d.phphttp://polisci.ucsd.edu/faculty/broz.htmlhttp://brown.edu/Departments/Political_Science/people/snyder/http://www.polisci.umn.edu/people/profile.php?UID=dsamuelshttp://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdfhttp://www.law.cornell.edu/constitution/articlevhttps://myaccount.nytimes.com/membercenter/feedback.htmlhttp://www.nytimes.com/ref/membercenter/help/infoservdirectory.htmlhttp://www.nytimes.com/membercenter/sitehelp.htmlhttp://www.nytimes.com/rsshttp://www.nytco.com/careershttp://www.nytimes.com/ref/membercenter/help/agree.htmlhttp://www.nytimes.com/content/help/rights/sale/terms-of-sale.htmlhttp://www.nytimes.whsites.net/mediakit/http://www.nytimes.com/ref/membercenter/help/privacy.html#pphttp://www.nytimes.com/privacyhttp://spiderbites.nytimes.com/http://www.nytco.com/


13/45

Wickard v. Filburn

317 U.S. 111 (1942)

[editors note: It is quite common for advocates before the court to state a number of reasons why a

given law is or isnt constitutional. Filburn has proposed three arguments. He says that the local

decision to accept the quota is invalid because the Secretary of Agriculture provided farmers with

incomplete informationthe Court could agree with Filburn without throwing out the law. But even

if the Secretarys speech was okay, the Agricultural Adjustment Act might be unconstitutionalbecause the national government doesnt have the power to regulate what Filburn grows. And even

if it can regulate what Filburn grows, it might not be able to do it in ways that violate Filburns due

process rights.]

Justice JACKSON delivered the opinion of the

Court.

1. The appellee filed his complaint against theSecretary of Agriculture of the UnitedStates, three members of the County

Agricultural Conservation Committee forMontgomery County, Ohio, and a memberof the State Agricultural Conservation

Committee for Ohio. He sought to enjoin

enforcement against himself of themarketing penalty imposed by theamendment of May 26, 1941, to the

Agricultural Adjustment Act of 1938, upon

that part of his 1941 wheat crop which wasavailable for marketing in excess of the

marketing quota established for his farm.He also sought a declaratory judgment that

the wheat marketing quota provisions of theAct as amended and applicable to him were

unconstitutional because not sustainable

under the Commerce Clause or consistentwith the Due Process Clause of the FifthAmendment.

2. The Secretary moved to dismiss the actionagainst him for improper venue but laterwaived his objection and filed an answer.The other appellants moved to dismiss on

the ground that they had no power or

authority to enforce the wheat marketing

quota provisions of the Act, and after theirmotion was denied they answered,reserving exceptions to the ruling on theirmotion to dismiss. The case was submitted

for decision on the pleadings and upon a

stipulation of facts.

3. The appellee for many years past hasowned and operated a small farm inMontgomery 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 ofwinter wheat, sown in the Fall andharvested in the following July; to sell a

portion of the crop; to feed part to poultry

and livestock on the farm, some of which issold; to use some in making flour for home

consumption; and to keep the rest for thefollowing seeding. The intended dispositionof the crop here involved has not been

expressly stated.

4. In July of 1940, pursuant to the AgriculturalAdjustment Act of 1938, as then amended,there were established for the appellee's1941 crop a wheat acreage allotment of

11.1 acres and a normal yield of 20.1

bushels of wheat an acre. He was given

notice of such allotment in July of 1940before the Fall planting of his 1941 crop ofwheat, and again in July of 1941, before it

was harvested. He sowed, however, 23acres, and harvested from his 11.9 acres of

excess acreage 239 bushels, which under

the terms of the Act as amended on May26, 1941, constituted farm marketingexcess, subject to a penalty of 49 cents a

bushel, or $117.11 in all. The appellee has

not paid the penalty and he has notpostponed or avoided it by storing the

excess under regulations of the Secretary ofAgriculture, or by delivering it up to theSecretary. The Committee, therefore,

refused him a marketing card, which was,

under the terms of Regulations promulgated

by the Secretary, necessary to protect abuyer from liability to the penalty and uponits protecting lien.

1


14/45

5. The general scheme of the AgriculturalAdjustment Act of 1938 as related to wheat

is to control the volume moving in

interstate and foreign commerce in order to

avoid surpluses and shortages and the

consequent abnormally low or high wheat

prices and obstructions to commerce.

Within prescribed limits and by prescribed

standards the Secretary of Agriculture isdirected to ascertain and proclaim each year

a national acreage allotment for the next

crop of wheat, which is then apportioned to

the states and their counties, and is

eventually broken up into allotments for

individual farms. Loans and payments to

wheat farmers are authorized in stated

circumstances.

6. The Act provides further that whenever itappears that the total supply of wheat as of

the beginning of any marketing year,

beginning July 1, will exceed a normalyear's domestic consumption and export by

more than 35 per cent, the Secretary shall

so proclaim not later than May 15 prior to

the beginning of such marketing year; and

that during the marketing year a

compulsory national marketing quota shall

be in effect with respect to the marketing of

wheat. Between the issuance of the

proclamation and June 10, the Secretary

must, however, conduct a referendum of

farmers who will be subject to the quota to

determine whether they favor or oppose it;and if more than one-third of the farmers

voting in the referendum do oppose, the

Secretary must prior to the effective date of

the quota by proclamation suspend its

operation.

7. On May 19, 1941 the Secretary ofAgriculture made a radio address to the

wheat farmers of the United States in which

he advocated approval of the quotas and

called attention to the pendency of the

amendment of May 26, 1941, which had at

the time been sent by Congress to the WhiteHouse, and pointed out its provision for an

increase in the loans on wheat to 85 per

cent of parity. He made no mention of the

fact that it also increased the penalty from

15 cents a bushel to one-half of the parity

loan rate of about 98 cents, but stated that

'Because of the uncertain world situation,

we deliberately planted several million

extra acres of wheat. . . . Farmers should

not be penalized because they have

provided insurance against shortages of

food.' [In other words, Filburn is arguing

that the farmers vote is invalid because

the Secretary omitted key information in

his radio addressed.]

8. Pursuant to the Act, the referendum ofwheat growers was held on May 31, 1941.

According to the required publishedstatement of the Secretary of Agriculture,

81 per cent of those voting favored the

marketing quota, with 19 per cent opposed.

9. The court below held, with one judgedissenting, that the speech of the Secretary

invalidated the referendum; and that the

amendment of May 26, 1941, 'in so far as it

increased the penalty for the farm

marketing excess over the fifteen cents per

bushel prevailing at the time of planting

and subjected the entire crop to a lien for

the payment thereof,' should not be appliedto the appellee because as so applied it was

retroactive and in violation of the Fifth

Amendment; and, alternatively, because the

equities of the case so required. Filburn v.

Helke , D.C., 43 F.Supp. 1017. Its judgment

permanently enjoined appellants from

collecting a marketing penalty of more than

15 cents a bushel on the farm marketing

excess of appellee's 1941 wheat crop, from

subjecting appellee's entire 1941 crop to a

lien for the payment of the penalty, and

from collecting a 15-cent penalty except inaccordance with the provisions of 339 of

the Act as that section stood prior to the

amendment of May 26, 1941. The Secretary

and his co-defendants have appealed.

I.

10.[Part I dismisses the argument that thewhat the Secretary said in the radio

program matters hereed.]

II.

11.It is urged that under the Commerce Clauseof 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, sustaining the federal power to

regulate production of goods for commerce

except for the fact that this Act extends

federal regulation to production not

2


15/45

intended in any part for commerce but

wholly for consumption on the farm. The

Act includes a definition of 'market' and its

derivatives so that as related to wheat in

addition to its conventional meaning it also

means to dispose of 'by feeding (in any

form) to poultry or livestock which, or the

products of which, are sold, bartered, or

exchanged, or to be so disposed of.' Hence,marketing quotas not only embrace all that

may be sold without penalty but also what

may be consumed on the premises. Wheat

produced on excess acreage is designated as

'available for marketing' as so defined and

the penalty is imposed thereon. Penalties do

not depend upon whether any part of the

wheat either within or without the quota is

sold or intended to be sold. 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.

12.Appellee says that this is a regulation ofproduction and consumption of wheat. Such

activities are, he urges, beyond the reach of

Congressional power under the Commerce

Clause, since they are local in character,

and their effects upon interstate commerce

are at most 'indirect.' In answer theGovernment argues that

the statute regulates

neither production nor

consumption, but only

marketing; and, in the

alternative, that if the

Act does go beyond the

regulation of marketing

it is sustainable as a

'necessary and proper'

implementation of the

power of Congress overinterstate commerce.

13.The Government'sconcern lest the Act be

held to be a regulation of

production or consumption rather than of

marketing is attributable to a few dicta and

decisions of this Court which might be

understood to lay it down that activities

such as 'production,' 'manufacturing,' and

'mining' are strictly 'local' and, except in

special circumstances which are not present

here, cannot be regulated under the

commerce power because their effects upon

interstate commerce are, as matter of law,

only 'indirect.' Even today, when this power

has been held to have great latitude, there is

no decision of this Court that such activities

may be regulated where no part of theproduct is intended for interstate commerce

or intermingled with the subjects thereof.

We believe that a review of the course of

decision under the Commerce Clause will

make plain, however, that questions of the

power of Congress are not to be decided by

reference to any formula which would give

controlling force to nomenclature such as

'production' and 'indirect' and foreclose

consideration of the actual effects of the

activity in question upon interstate

commerce.14.At the beginning Chief Justice Marshall

described the Federal commerce power

with a breadth never yet exceeded. Gibbons

v. Ogden , 9 Wheat. 1, 194, 195. He made

emphatic the embracing and penetrating

nature of this power by warning that

effective restraints on its exercise must

proceed from political rather than from

judicial processes. 9 Wheat. at page 197.

For nearly a century, however, decisions of

this Court under the Commerce Clause

dealt rarely with questions of whatCongress might do in the

exercise of its granted

power under the Clause

and almost entirely with

the permissibility of state

activity which it was

claimed discriminated

against or burdened

interstate commerce.

During this period there

was perhaps little

occasion for theaffirmative exercise of the

commerce power, and the

influence of the Clause on

American life and law

was a negative one,

resulting almost wholly from its operation

as a restraint upon the powers of the states.

In discussion and decision the point of

reference instead of being what was

For nearly a century,however, decis ions of thisCourt under the CommerceClause dealt rarely withquest ions of whatCongress might do in theexercise of i ts grantedpowerthe inf luence of theClause on American l i feand law was a negat iveone, result ing almostwhol ly from its operat ion asa restraint upon the powersof the states.

3


16/45

'necessary and proper' to the exercise by

Congress of its granted power, was often

some concept of sovereignty thought to be

implicit in the status of statehood. Certain

activities such as 'production,'

'manufacturing,' and 'mining' were

occasionally said to be within the province

of state governments and beyond the power

of Congress under the Commerce Clause.15.It was not until 1887 with the enactment of

the Interstate Commerce Act that the

interstate commerce power began to exert

positive influence in American law and life.

This first important federal resort to the

commerce power was followed in 1890 by

the Sherman Anti-Trust Act and, thereafter,

mainly after 1903, by many others. These

statutes ushered in new phases of

adjudication, which required the Court to

approach the interpretation of the

Commerce Clause in the light of an actualexercise by Congress of its power

thereunder.

16.When it first dealt with this new legislation,the Court adhered to its earlier

pronouncements, and allowed but little

scope to the power of Congress. United

States v. E. C. Knight Co ., 156 U.S. 1, 15

S.Ct. 249. These earlier pronouncements

also played an important part in several of

the five cases in which this Court later held

that Acts of Congress under the Commerce

Clause were in excess of its power.

17.Even while important opinions in this lineof restrictive authority were being written,

however, other cases called

forth broader interpretations

of the Commerce Clause

destined to supersede the

earlier ones, and to bring

about a return to the

principles first enunciated by

Chief Justice Marshall in

Gibbons v. Ogden , supra.

18.In the Shreveport Rate Cases(Houston, E. & W.T.R. Co. v. United

States), 234 U.S. 342, 34 S.Ct. 833, the

Court held that railroad rates of an

admittedly intrastate character and fixed by

authority of the state might, nevertheless,

be revised by the Federal Government

because of the economic effects which they

had upon interstate commerce. The opinion

of Mr. Justice Hughes found federal

intervention constitutionally authorized

because of 'matters having such a close and

substantial relation to interstate traffic that

the control is essential or appropriate to the

security of that traffic, to the efficiency of

the interstate service, and to the

maintenance of the conditions under which

interstate commerce may be conductedupon fair terms and without molestation or

hindrance.' 234 U.S. at page 351, 34 S.Ct.

at page 836.

19.The Court's recognition of the relevance ofthe economic effects in the application of

the Commerce Clause exemplified by this

statement has made the mechanical

application of legal formulas no longer

feasible. Once an economic measure of the

reach of the power granted to Congress in

the Commerce Clause is accepted,

questions of federal power cannot bedecided simply by finding the activity in

question to be 'production' nor can

consideration of its economic effects be

foreclosed by calling them 'indirect.' The

present Chief Justice has said in summary

of the present state of the law: 'The

commerce power is not confined in its

exercise to the regulation of commerce

among the states. It extends to those

activities intrastate which so affect

interstate commerce, or the exertion of the

power of Congress over it, as to makeregulation of them appropriate means to the

attainment of a legitimate end, the effective

execution of the granted power to regulate

interstate commerce.

... The power of

Congress over

interstate commerce

is plenary and

complete in itself,

may be exercised to

its utmost extent, and

acknowledges nolimitations other than are prescribed in the

Constitution. ... It follows that no form of

state activity can constitutionally thwart the

regulatory power granted by the commerce

clause to Congress. Hence the reach of that

power extends to those intrastate activities

which in a substantial way interfere with or

obstruct the exercise of the granted power.'

Whether the subject of theregulat ion in quest ion wasproduct ion, consumption,or market ing is, therefore,not materia l for purposes ofdeciding the quest ion offederal power before us.

4


17/45

United States v. Wrightwood Dairy Co ., 315

U.S. 110, 119, 62 S.Ct. 523, 526.

20.Whether the subject of the regulation inquestion was 'production,' 'consumption,' or'marketing' is, therefore, not material for

purposes of deciding the question of federal

power before us. That an activity is of localcharacter may help in a doubtful case to

determine whether Congress intended toreach it. The same consideration might help

in determining whether in the absence ofCongressional action it would be

permissible for the state to exert its power

on the subject matter, even though in sodoing it to some degree affected interstatecommerce. But even if appellee's activity

be local and though it may not be regardedas commerce, it may still, whatever its

nature, be reached by Congress if it exerts a

substantial economic effect on interstate

commerce and this irrespective of whethersuch effect is what might at some earlier

time have been defined as 'direct' or

'indirect.'

21.The parties have stipulated a summary ofthe economics of the wheat industry.Commerce among the states in wheat is

large and important. Although wheat is

raised in every state but one, production inmost states is not equal to consumption.Sixteen states on average have had a

surplus of wheat above their own

requirements for feed, seed, and food.Thirty-two states and the District of

Columbia, where production has beenbelow consumption, have looked to thesesurplus-producing states for their supply as

well as for wheat for export and carryover.

22.The wheat industry has been a problemindustry for some years. Largely as a resultof increased foreign production and importrestrictions, annual exports of wheat and

flour from the United States during the ten-

year period ending in 1940 averaged lessthan 10 per cent of total production, whileduring the 1920's they averaged more than25 per cent. The decline in the export trade

has left a large surplus in production whichin connection with an abnormally large

supply of wheat and other grains in recent

years caused congestion in a number ofmarkets; tied up railroad cars; and causedelevators in some instances to turn away

grains, and railroads to institute embargoes

to prevent further congestion.

23.Many countries, both importing andexporting, have sought to modify theimpact of the world market conditions on

their own economy. Importing countries

have taken measures to stimulateproduction and self-sufficiency. The four

large exporting countries of Argentina,Australia, Canada, and the United States

have all undertaken various programs forthe relief of growers. Such measures have

been designed in part at least to protect the

domestic price received by producers. Suchplans have generally evolved towardscontrol by the central government.

24.In the absence of regulation the price ofwheat in the United States would be much

affected by world conditions. During 1941producers who cooperated with the

Agricultural Adjustment program receivedan average price on the farm of about $1.16a bushel as compared with the world

market price of 40 cents a bushel.

25.Differences in farming conditions,however, make these benefits mean

different things to different wheat growers.

There are several large areas ofspecialization in wheat, and the

concentration on this crop reaches 27percent of the crop land, and the averageharvest runs as high as 155 acres. Except

for some use of wheat as stock feed and for

seed, the practice is to sell the crop forcash. Wheat from such areas constitutes the

bulk of the interstate commerce therein.

26.On the other hand, in some New Englandstates less than one percent of the crop land

is devoted to wheat, and the average harvestis less than five acres per farm. In 1940 the

average percentage of the total wheatproduction that was sold in each state as

measured by value ranged from 29 per cent

thereof in Wisconsin to 90 per cent inWashington. Except in regions of large-

scale production, wheat is usually grown inrotation with other crops; for a nurse cropfor grass seeding; and as a cover crop to

prevent soil erosion and leaching. Some issold, some kept for seed, and a percentage

of the total production much larger than in

areas of specialization is consumed on thefarm and grown for such purpose. Such

5


18/45

farmers, while growing some wheat, may

even find the balance of their interest on the

consumer's side.

27.The effect of consumption of homegrownwheat on interstate commerce is due to the

fact that it constitutes the most variable

factor in the disappearance of the wheat

crop. Consumption on the farm where

grown appears to vary in an amount greaterthan 20 per cent of average production. The

total amount of wheat consumed as food

varies but relatively little, and use as seed is

relatively constant.

28.The maintenance by government regulationof a price for wheat undoubtedly can be

accomplished as effectively by sustaining

or increasing the demand as by limiting the

supply. The effect of the statute before us is

to restrict the amount which may be

produced for market and the extent as well

to which one may forestall resort to themarket by producing to meet his own

needs. That appellee's own contribution to

the demand for wheat may be trivial by

itself is not enough to remove him from the

scope of federal regulation where, as here,

his contribution, taken together with that of

many others similarly situated, is far from

trivial. National Labor Relations Board v.

Fainblatt , 306 U.S. 601, 606, et seq., 307

U.S. 609, 59 S.Ct. 668; United States v.

Darby, supra, 312 U.S. at page 123, 61

S.Ct. 461, 132 A.L.R. 1430.

29.It is well established by decisions of thisCourt that the power to regulate commerce

includes the power to regulate the prices at

which commodities in that commerce are

dealt in and practices affecting such 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 incommerce. The stimulation of commerce is

a use of the regulatory function quite as

definitely as prohibitions or restrictions

thereon. This record leaves us in no doubt

that Congress 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.

30.It is said, however, that this Act, forcingsome farmers into the market to buy what

they could provide for themselves, is an

unfair promotion of the markets and pricesof specializing wheat growers. It is of the

essence of regulation that it lays a

restraining hand on the self-interest of the

regulated and that advantages from the

regulation commonly fall to others. The

conflicts of economic interest between the

regulated and those who advantage by it are

wisely left under our system to resolution

by the Congress under its more flexible and

responsible legislative process. Such

conflicts rarely lend themselves to judicial

determination. And with the wisdom,workability, or fairness, of the plan of

regulation we have nothing to do.

III.

31.[This part deals with the argument thatthe government violated Filburns due

process rights by assessing him penalties

he couldnt avoided.] The statute is also

challenged as a deprivation of property

without due process of law contrary to the

The conf l icts of economicinterest between the regulatedand those who advantage by i tare wisely left under our systemto resolut ion by the Congressunder i ts more f lexible andresponsible legis lat ive process.

The st imulat ion of commerce is ause of the regulatory funct ion quiteas def ini te ly as prohibit ions orrestr ict ions thereon.

6


19/45

Fifth Amendment, both because of its

regulatory effect on the appellee and

because of its alleged retroactive effect.

The court below sustained the plea on the

ground of forbidden retroactivity 'or in the

alternative, that the equities of the case as

shown by the record favor the plaintiff.' 43

F.Supp. 1017, 1019. An Act of Congress is

not to be refused application by the courtsas arbitrary and capricious and forbidden by

the Due Process Clause merely because it is

deemed in a particular case to work an

inequitable result.

32.Appellee's claim that the Act works adeprivation of due process even apart from

its allegedly retroactive effect is not

persuasive. Control of total supply, upon

which the whole statutory plan is based,

depends upon control of individual supply.

Appellee's claim is not that his quota

represented less than a fair share of thenational quota, but that the Fifth

Amendment requires that he be free from

penalty for planting wheat and disposing of

his crop as he sees fit.

33.We do not agree. In its effort to controltotal supply, the Government gave the

farmer a choice which was, of course,

designed to encourage cooperation and

discourage non-cooperation. The farmer

who planted within his allotment was in

effect guaranteed a minimum return much

above what his wheat would have broughtif sold on a world market basis. Exemption

from the applicability of quotas was made

in favor of small producers. The farmer

who produced in excess of his quota might

escape penalty by delivering his wheat to

the Secretary or by storing it with the

privilege of sale without penalty in a later

year to fill out his quota, or irrespective of

quotas if they are no longer in effect, and he

could obtain a loan of 60 per cent of the

rate for cooperators, or about 59 cents a

bushel, on so much of his wheat as wouldbe subject to penalty if marketed. Finally,

he might make other disposition of his

wheat, subject to the penalty. It is agreed

that as the result of the wheat programs he

is able to market his wheat at a price 'far

above any world price based on the natural

reaction of supply and demand.' We can

hardly find a denial of due process in these

circumstances, particularly since it is even

doubtful that appellee's burdens under the

program outweigh his benefits. It is hardly

lack of due process for the Government to

regulate that which it subsidizes.

34.The penalty provided by the amendmentcan be postponed or avoided only by

storing the farm marketing excess

according to regulations promulgated by

the Secretary or by delivering it to himwithout compensation; and the penalty is

incurred and becomes due on threshing.

Thus the penalty was contingent upon an

act which appellee committed not before

but after the enactment of the statute, and

had he chosen to cut his excess and cure it

or feed it as hay, or to reap and feed it with

the head and straw together, no penalty

would have been demanded. Such manner

of consumption is not uncommon. Only

when he threshed and thereby made it a part

of the bulk of wheat overhanging themarket did he become subject to penalty.

He has made no effort to show that the

value of his excess wheat consumed

without threshing was less than it would

have been had it been threshed while

subject to the statutory provisions in force

at the time of planting. Concurrently with

the increase in the amount of the penalty

Congress authorized a substantial increase

in the amount of the loan which might be

made to cooperators upon stored farm

marketing excess wheat. That appellee isthe worse off for the aggregate of this

legislation does not appear; it only appears

that if he could get all that the Government

gives and do nothing that the Government

asks, he would be better off than this law

allows. To deny him this is not to deny him

due process of law. Cf. Mulford v. Smith ,

307 U.S. 38, 59 S.Ct. 648.

35.Reversed.

7


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1

Gonzales v. Raich

Argued November 29, 2004

Decided June 6, 2005

California's Compassionate Use Act authorizes

limited marijuana use for medicinal purposes.Respondents Raich and Monson are California

residents who both use doctor-recommended

marijuana for serious medical conditions. After

federal Drug Enforcement Administration (DEA)

agents seized and destroyed all six of Monson'scannabis plants, respondents brought this action

seeking injunctive and declaratory relief

prohibiting the enforcement of the federal

Controlled Substances Act (CSA) to the extent it

prevents them from possessing, obtaining, or

manufacturing cannabis for their personal

medical use. Respondents claim that enforcing

the CSA against them would violate theCommerce Clause and other constitutional

provisions.

Justice Stevens delivered the opinion of the

Court.

1. California is one of at least nine Statesthat authorize the use of marijuana for

medicinal purposes.1 The question

presented in this case is whether the

power vested in Congress by Article I, 8,of the Constitution "[t]o make all Laws

which shall be necessary and proper for

carrying into Execution" its authority to

"regulate Commerce with foreign

Nations, and among the several States"

includes the power to prohibit the local

cultivation and use of marijuana in

compliance with California law.

I

2. California has been a pioneer in theregulation of marijuana. In 1913,

California was one of the first States toprohibit the sale and possession of

marijuana, and at the end of the century,

California became the first State to

authorize limited use of the drug for

medicinal purposes. In 1996, California

voters passed Proposition 215, now

codified as the Compassionate Use Act

of 1996. The proposition was designed to

ensure that "seriously ill" residents of the

State have access to marijuana for

medical purposes, and to encourage

Federal and State Governments to take

steps towards ensuring the safe and

affordable distribution of the drug to

patients in need. The Act creates anexemption from criminal prosecution for

physicians, as well as for patients and

primary caregivers who possess or

cultivate marijuana for medicinal

purposes with the recommendation or

approval of a physician. A "primary

caregiver" is a person who has

consistently assumed responsibility for

the housing, health, or safety of the

patient.

3. Respondents Angel Raich and DianeMonson are California residents whosuffer from a variety of serious medical

conditions and have sought to avail

themselves of medical marijuana

pursuant to the terms of the

Compassionate Use Act. They are being

treated by licensed, board-certified

family practitioners, who have

concluded, after prescribing a host of

conventional medicines to treat

respondents' conditions and to alleviate

their associated symptoms, that

marijuana is the only drug available thatprovides effective treatment. Both

women have been using marijuana as a

medication for several years pursuant to

their doctors' recommendation, and both

rely heavily on cannabis to function on a

daily basis. Indeed, Raich's physician

believes that forgoing cannabis

treatments would certainly cause Raich

excruciating pain and could very well

prove fatal.

4. Respondent Monson cultivates her ownmarijuana, and ingests the drug in a

variety of ways including smoking and

using a vaporizer. Respondent Raich, by

contrast, is unable to cultivate her own,

and thus relies on two caregivers,

litigating as "John Does," to provide her

with locally grown marijuana at no

charge. These caregivers also process the


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2

cannabis into hashish or keif, and Raich

herself processes some of the marijuana

into oils, balms, and foods for

consumption.

5. On August 15, 2002, county deputysheriffs and agents from the federal Drug

Enforcement Administration (DEA)

came to Monson's home. After a

thorough investigation, the county

officials concluded that her use of

marijuana was entirely lawful as a matter

of California law. Nevertheless, after a 3-

hour standoff, the federal agents seized

and destroyed all six of her cannabis

plants.

6. Respondents thereafter brought thisaction against the Attorney General of

the United States and the head of the

DEA seeking injunctive and declaratory

relief prohibiting the enforcement of the

federal Controlled Substances Act

(CSA), to the extent it prevents them

from possessing, obtaining, or

manufacturing cannabis for their

personal medical use. In their complaint

and supporting affidavits, Raich and

Monson described the severity of their

afflictions, their repeatedly futile

attempts to obtain relief with

conventional medications, and the

opinions of their doctors concerning their

need to use marijuana. Respondents

claimed that enforcing the CSA against

them would violate the Commerce

Clause, the Due Process Clause of the

Fifth Amendment, the Ninth and Tenth

Amendments of the Constitution, and the

doctrine of medical necessity.

7. The District Court denied respondents'motion for a preliminary injunction.

Although the court found that the federal

enforcement interests "wane[d]" whencompared to the harm that California

residents would suffer if denied access to

medically necessary marijuana, it

concluded that respondents could not

demonstrate a likelihood of success on

the merits of their legal claims.

8. A divided panel of the Court of Appealsfor the Ninth Circuit reversed and

ordered the District Court to enter a

preliminary injunction. The court found

that respondents had "demonstrated a

strong likelihood of success on their

claim that, as applied to them, the CSA is

an unconstitutional exercise of Congress'

Commerce Clause authority." The Courtof Appeals distinguished prior Circuit

cases upholding the CSA in the face of

Commerce Clause challenges by

focusing on what it deemed to be the

"separate and distinct class of activities"

at issue in this case: "the intrastate,

noncommercial cultivation and

possession of cannabis for personal

medical purposes as recommended by a

patient's physician pursuant to valid

California state law." The court found the

latter class of activities "different in kindfrom drug trafficking" because

interposing a physician's

recommendation raises different health

and safety concerns, and because "this

limited use is clearly distinct from the

broader illicit drug market--as well as

any broader commercial market for

medicinal marijuana--insofar as the

medicinal marijuana at issue in this case

is not intended for, nor does it enter, the

stream of commerce."

9. The majority placed heavy reliance onour decisions in United States v. Lopez,

(1995), and United States v. Morrison,

(2000), as interpreted by recent Circuit

precedent, to hold that this separate class

of purely local activities was beyond the

reach of federal power. In contrast, the

dissenting judge concluded that the CSA,

as applied to respondents, was clearly

valid under Lopez and Morrison;

moreover, he thought it "simply

impossible to distinguish the relevant

conduct surrounding the cultivation anduse of the marijuana crop at issue in this

case from the cultivation and use of the

wheat crop that affected interstate

commerce in Wickard v. Filburn."

10.The obvious importance of the caseprompted our grant of certiorari. The

case is made difficult by respondents'


22/45


23/45

4

international and interstate traffic in

illicit drugs. The main objectives of the

CSA were to conquer drug abuse and to

control the legitimate and illegitimate

traffic in controlled substances. Congress

was particularly concerned with the need

to prevent the diversion of drugs fromlegitimate to illicit channels.

16.To effectuate these goals, Congressdevised a closed regulatory system

making it unlawful to manufacture,

distribute, dispense, or possess any

controlled substance except in a manner

authorized by the CSA. ...

III

17.Respondents in this case do not disputethat passage of the CSA, as part of the

Comprehensive Drug Abuse Preventionand Control Act, was well within

Congress' commerce power. ... Nor do

they contend that any provision or

section of the CSA amounts to an

unconstitutional exercise of

congressional authority. Rather,

respondents' challenge is actually quite

limited; they argue that the CSA's

categorical prohibition of the

manufacture and possession of marijuana

as applied to the intrastate manufacture

and possession of marijuana for medicalpurposes pursuant to California law

exceeds Congress' authority under the

Commerce Clause.

18.In assessing the validity of congressionalregulation, none of our Commerce

Clause cases can be viewed in isolation.

As charted in considerable detail inUnited States v. Lopez, our

understanding of the reach of the

Commerce Clause, as well as Congress'

assertion of authority thereunder, has

evolved over time. ... For the first centuryof our history, the primary use of the

Clause was to preclude the kind of

discriminatory state legislation that had

once been permissible. Then, in response

to rapid industrial development and an

increasingly interdependent national

economy, Congress "ushered in a new

era of federal regulation under the

commerce power," beginning with the

enactment of the Interstate Commerce

Act in 1887....

19.Cases decided during that "new era,"which now spans more than a century,

have identified three general categories

of regulation in which Congress is

authorized to engage under its commerce

power. First, Congress can regulate the

channels of interstate commerce. Perez v.

United States (1971). Second, Congress

has authority to regulate and protect the

instrumentalities of interstate commerce,

and persons or things in interstate

commerce. Ibid. Third, Congress has the

power to regulate activities that

substantially affect interstate commerce.

Ibid.; NLRB v. Jones & Laughlin Steel

Corp. (1937). Only the third category isimplicated in the case at hand.

20.Our case law firmly establishesCongress' power to regulate purely local

activities that are part of an economic

"class of activities" that have a

substantial effect on interstate commerce.

... As we stated in Wickard, "even if

appellee's activity be local and though it

may not be regarded as commerce, it

may still, whatever its nature, be reached

by Congress if it exerts a substantial

economic effect on interstate commerce."

We have never required Congress to

legislate with scientific exactitude. When

Congress decides that the "'total

incidence'" of a practice poses a threat to

a national market, it may regulate the

entire class. ..

21.Wickard ... establishes that Congress canregulate purely intrastate activity that is

not itself "commercial," in that it is not

produced for sale, if it concludes that

failure to regulate that class of activitywould undercut the regulation of the

interstate market in that commodity.

22.The similarities between this case andWickard are striking. Like the farmer in

Wickard, respondents are cultivating, for

home consumption, a fungible

commodity for which there is an

established, albeit illegal, interstate


24/45

5

market. Just as the Agricultural

Adjustment Act was designed "to control

the volume [of wheat] moving in

interstate and foreign commerce in order

to avoid surpluses ..." and consequently

control the market price, a primary

purpose of the CSA is to control thesupply and demand of controlled

substances in both lawful and unlawful

drug markets. In Wickard, we had no

difficulty concluding that Congress had a

rational basis for believing that, when

viewed in the aggregate, leaving home-

consumed wheat outside the regulatory

scheme would have a substantial

influence on price and market conditions.

Here too, Congress had a rational basis

for concluding that leaving home-

consumed marijuana outside federalcontrol would similarly affect price and

market conditions.

23.More concretely, one concern promptinginclusion of wheat grown for home

consumption in the 1938 Act was that

rising market prices could draw such

wheat into the interstate market, resulting

in lower market prices. The parallel

concern making it appropriate to include

marijuana grown for home consumption

in the CSA is the likelihood that the high

demand in the interstate market will drawsuch marijuana into that market. While

the diversion of homegrown wheat

tended to frustrate the federal interest in

stabilizing prices by regulating the

volume of commercial transactions in the

interstate market, the diversion of

homegrown marijuana tends to frustrate

the federal interest in eliminating

commercial transactions in the interstate

market in their entirety. In both cases, the

regulation is squarely within Congress'

commerce power because production ofthe commodity meant for home

consumption, be it wheat or marijuana,

has a substantial effect on supply and

demand in the national market for that

commodity.

24.Nonetheless, respondents suggest thatWickard differs from this case in three

respects: (1) the Agricultural Adjustment

Act, unlike the CSA, exempted small

farming operations; (2) Wickard

involved a "quintessential economic

activity"--a commercial farm--whereas

respondents do not sell marijuana; and

(3) the Wickard record made it clear thatthe aggregate production of wheat for use

on farms had a significant impact on

market prices. Those differences, though

factually accurate, do not diminish the

precedential force of this Court's

reasoning. ....

IV

25.To support their contrary submission,respondents rely heavily on two of our

more recent Commerce Clause cases. In

their myopic focus, they overlook the

larger context of modern-era Commerce

Clause jurisprudence preserved by those

cases. Moreover, even in the narrow

prism of respondents' creation, they read

those cases far too broadly. Those two

cases, of course, are Lopez and Morrison.

As an initial matter, the statutory

challenges at issue in those cases were

markedly different from the challenge

respondents pursue in the case at hand.

Here, respondents ask us to excise

individual applications of a concededly

valid statutory scheme. In contrast, in

both Lopez and Morrison, the parties

asserted that a particular statute or

provision fell outside Congress'

commerce power in its entirety. This

distinction is pivotal for we have often

reiterated that "[w]here the class of

activities is regulated and that class is

within the reach of federal power, the

courts have no power 'to excise, as

trivial, individual instances' of the class."

26.Unlike those at issue in Lopez andMorrison, the activities regulated by the

CSA are quintessentially economic.

"Economics" refers to "the production,

distribution, and consumption of

commodities." Webster's Third New

International Dictionary 720 (1966). The

CSA is a statute that regulates the


25/45

6

production, distribution, and

consumption of commodities for which

there is an established, and lucrative,

interstate market. Prohibiting the

intrastate possession or manufacture of

an article of commerce is a rational (and

commonly utilized) means of regulatingcommerce in that product....

27.First, the fact that marijuana is used "forpersonal medical purposes on the advice

of a physician" cannot itself serve as a

distinguishing factor. The CSA

designates marijuana as contraband for

any purpose; in fact, by characterizing

marijuana as a Schedule I drug, Congress

expressly found that the drug has no

acceptable medical uses. Moreover, the

CSA is a comprehensive regulatory

regime specifically designed to regulatewhich controlled substances can be

utilized for medicinal purposes, and in

what manner. Indeed, most of the

substances classified in the CSA "have a

useful and legitimate medical purpose."

Thus, even if respondents are correct that

marijuana does have accepted medical

uses and thus should be redesignated as a

lesser schedule drug, the CSA would still

impose controls beyond what is required

by California law ... the mere fact that

marijuana--like virtually every othercontrolled substance regulated by t

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