In the light of our experience with the 18th Amendment...

There is something I have been upset about... I went back and re-read the Gonzales v. Raich 545 U.S. 1 (2005) decision. The court decided in that case that Californians who use cannabis for medical reasons are not immune from federal law, and that the alphabet soup of federal drug fanatics is not in excess of the powers granted to Congress under the Commerce Clause. However, there is an argument I have had rolling around in my head for quite some time that it appears went undiscussed by the court. I have not been able to find copies of the briefs submitted in that case, so I do not know if the argument was made, but I would love to see the court discuss this:

When reading the US Constitution, it is best to assume that every word is there for a reason. The document is a short one and to use it as a governing document, every word must have meaning. Likewise, because the Amendment process is so difficult, every Amendment must have meaning as well. It is so difficult to get 2/3 of the House, 2/3 of the Senate and 3/4 of the States to agree on a specific set of language to add to the Constitution that if a mere law were capable of doing the job, no one in his right mind would go through the amendment process.

So what does this have to do with the Raich decision and Congressional powers under the Commerce Clause to have a bunch of alphabet soup federal drug fanatic enforcement regimes? Everything. The 18th Amendment to the Constitution outlaws alcohol at the Constitutional level. Specifically, the substantive parts of the 18th Amendment reads (Sec 3 is omitted, as it is procedural in nature):

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.

It authorized the Congress and the several states to prohibit the manufacture, sale, and transportation of intoxicating liquors for beverage purposes.

Why did they pass this as a constitutional amendment if they could have passed a law? The answer is that they could not. Prior to the 18th Amendment, the federal government had no power to prohibit alcohol. The prohibitionists needed the 18th Amendment in order to make criminals out of all who consumed alcohol.

The 21st Amendment was enacted in 1933(again omitting the procedural sec 3):

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 1 repeals the 18th Amendment. The effect of this is that any powers granted to Congress by the 18th Amendment are also revoked. This means that since Congress did not, prior to the 18th Amendment, have the power to prohibit alcohol on a nationwide scale, following the 21st Amendment, it would again lack any such power unless otherwise granted by another Amendment passed since the 18th Amendment.

Some of this power is restored in Section 2. This section makes sure that Congress has the power to prohibit the transportation of liquors between state borders where such transportation would violate the laws of the states among whom the liquors are transported. Congress and the States restored the power to the States to regulate alcohol and put Congress in a position to support the policy decisions made by the several States. This is an explicit decision to allow federally enforced federalism. Let the States make the policies, not the federal government.

What it does not say is equally important. The 18th Amendment granted two important powers to the federal government that were not restored by Section 2 of the 21st Amendment after being repealed by Section 1: the power to prohibit the manufacture or sale of intoxicating liquors within a State in violation of the laws within that State, and the power to prohibit "the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes" within a State where that State has decided to make these things legal or between two States where such conduct is legal in both States.

Another major issue is just what is an intoxicating liquor that Congress has the power to regulate under Section 2 of the 21st Amendment? The Supreme Court has given some limited insight into this on discussing the validity of the FDA regulating tobacco:

In fact, HEW Secretary Celebrezze urged Congress not to amend the FDCA to cover "smoking products" because, in light of the findings in the Surgeon General's report, such a "provision might well completely outlaw at least cigarettes. This would be contrary to what, we understand, is intended or what, in the light of our experience with the 18th amendment, would be acceptable to the American people."

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (U.S. 2000)

What this indicates is that the government and the Supreme Court have acknowledged that the 21st Amendment's repeal of the 18th Amendment and regranting of some authority regranted less authority to Congress than had been present while the 18th Amendment was in place and that this limited authority does not go so far as to allow Congress the power to ban cigarettes (perhaps they could ban the transportation of butts into a State that outlaws them?).

This understanding of the 18th Amendment should be transposed by the Court onto other products than just tobacco. At a minimum, it should also be read onto the medical use of the cannabis plant if not all drugs or even all consumables. Whether the federal government can regulate purity or not, I do not have an answer. However, at a minimum, the constitutionality of the complete ban on Schedule 1 drugs is dubious. It is my belief that the proper readings of the 18th and 21st Amendments to the Constitution require an overturning of Raich and should probably overturn that bane of cases, Wickard v. Filburn(where the Court found that Congress had the power to prevent the growing of wheat for personal consumption because it could have an effect on interstate commerce). While this might only be overturning the actual outcome of Wickard, as it would be on other grounds, it would at long last begin to chip away at the Roosevelt court's blatant disregard for stare decisis and the Constitution itself.