Epstein Rethinks 'Wickard'
As Justice Louis Brandeis articulated in New State Ice v. Lieberman, states may serve as laboratories for social and economic experiments. But some experiments are virtuous and others ruinous, so which local experiments should be welcomed and why? That issue is now before the U.S. Supreme Court. Raich v. Ashcroft asks whether the federal government, pursuant to its vast commerce clause powers, can use the 1970 Controlled Substances Act to squash as criminal a California experiment with medical marijuana. Granholm v. Heald [and Swedenburg v. Kelly] ask whether Michigan or New York, respectively, may enforce local laws that explicitly discriminate against direct sales to consumers of wine sold by out-of-state breweries.
The consensus after oral argument is that medical marijuana programs are doomed and the out-of-state wineries will be able to compete on equal terms-a result that would only be half right. That split decision will grasp the importance of protecting the national market against state intrusion, but it will fail to protect state experimentation against federal power even when competitive federalism works.
This mixed verdict depends on exposing the deep intellectual tensions in the Brandeis truism. In 1932, racial segregation in public schools was defended as a state experiment on matters of race. In New State Ice, Brandeis was dissenting from a decision that struck down an Oklahoma law that blocked ordinary people from entering the ice business without obtaining a state license of public need. Brandeis was wrong, for the last experiment any state needs is another coddled local monopoly. Indeed, the entire thrust of the 14th Amendment's guarantees of due process and equal protection is against unwise state regulation of private activities. After all, experimentation makes sense only when there is some bona fide uncertainty as to the proper approach to a complex social problem. Raich meets that standard; Granholm and Swedenburg do not.
There is today a simmering medical dispute over whether marijuana provides relief to the sick that cannot otherwise be obtained. Raich and her co-plaintiff have a demonstrated need for marijuana and obtained it through purely "local" transactions.
They argue that these transactions escape the clutches of federal power under the New Deal decision Wickard v. Filburn , which found that even the feeding of one's own grain to one's own cows, when done by many farmers, has a "substantial effect" on grain prices and hence on interstate commerce. Wickard is distinguishable because there was no competing state policy as there is on medical marijuana-11 states have opted to experiment with compassionate-use programs. Imposing a national policy not only leads to gratuitous suffering but also chokes off the possibility that individual states will find ways to balance the medical use of marijuana with the prohibition against its recreational use.
The decision in United States v. Lopez  indicated that Wickard should not be read to presume complete federal dominance under the commerce clause. That ruling should be applied here to allow the states to experiment with policies without Washington's approval. The Supreme Court should rethink Wickard from the ground up, so that we cease to prop up harmful nationwide cartels.
Not quite so dormant
Granholm and Swedenburg call for exactly the opposite conclusion. Historically, the attempt to balkanize the national market by restrictive and discriminatory trade law failed; the Supreme Court's great achievement under the dormant commerce clause has been to prevent protectionist states from imposing discriminatory barriers on trade-even absent an explicit congressional blessing. Standing alone, the dormant commerce clause makes toast of Michigan's discriminatory prohibition against direct-to-consumer sales from wineries located outside Michigan. Even the less restrictive New York law, requiring wineries to maintain a costly and unnecessary physical presence in the state, should fall.
Yet both cases face complications. In 1919, the 18th Amendment ushered in prohibition by banning the manufacture, sale, transportation or importation of intoxicating liquor. The 21st Amendment repealed prohibition in 1933 and banned the "transportation and importation" of intoxicating liquors into any state "in violation of the laws thereof." Literally read, this provision would allow states to make it legal for only blacks or Christians to import wine. States argue more modestly that the 21st Amendment only preserves the "core" power of the state to engage in old-fashioned economic protectionism. Fortunately, it looks as though the high court won't bite: If invidious discrimination is out, then so too is local favoritism.
In addition, the 21st Amendment sheds a bright light on Wickard. In 1933, transportation and importation across state lines were seen as federal functions. The 21st Amendment quelled fears that the Webb-Kenyon Act, which granted the states power over transportation and importation, might be declared an unconstitutional delegation of federal power to the states, or might be repealed by Congress. The 21st Amendment did not grant the states exclusive jurisdiction over regulating matters alcoholic, because as late as 1933 no one dreamed that the federal government had such vast powers in the first place.
It would be truly marvelous if the court used this happy conjunction of cases to overturn Wickard-but don't hold your breath. The court that rightly supports competition among states also perversely props up national cartels, while mercilessly throttling state experimentation on life-and-death matters.
Richard Epstein is the James Parker Hall Distinguished Service professor of law at the University of Chicago and P