Those of us who are students of the Constitution, who read it often and think we understand what it means are always stupefied at how the federal government has managed to expand in spite of the very specific delegation of powers contained in that document. If you read the Constitution you will note there are only about eighteen of them. So how did it happen?
Well, let’s back up here a moment to before the Constitution was adopted when the states lived under the Articles of Confederation. States had erected protectionist barriers which interfered with the free flow of trade in the new nation.
One of the main reasons for the Constitutional Convention was to remedy that problem.
The solution at which the framers arrived was the commerce clause which was intended to make a free-trade zone out of the United States. (The clause also delegated to Congress the power to "regulate" trade with foreign nations and the Indian tribes.)
Initially the clause was closely interpreted as referring to interference by the states with a flow of commerce. Chief Justice John Marshall laid down the principle that for the national government to have jurisdiction, an issue must involve the trafficking of goods (not manufacture) between two or more states.
He recognized that the enumeration of the interstate commerce power implied powers unenumerated (concerning intrastate commerce) and thus undelegated.
Over the years the courts insisted on confining the commerce power to commerce, the actual movement of goods; production was regarded as prior to commerce and not within federal jurisdiction.
While the distinction between commerce and production was not very well delineated it was only a matter of time before the fact that a market economy was a web in which everything affects everything else would cause the barrier to go down and allow the federal government to begin to regulate production as well.
It was during Roosevelt’s New Deal when all inhibitions on federal regulation of the economy were thrown under the bus.
The anchoring of the commerce clause in the belief that state governments could not erect trade barriers was forgotten.
It was the Ohio dairy farmer Roscoe Filburn who raised a small quantity of winter wheat – some to sell, some to feed his own livestock, and some to consume – that filed suit in 1940 challenging the Agricultural Adjustment Act that finally led to the camel being fully in the tent on government regulating the economy.
Wickard v. Filburn got to the Supreme Court, and in 1942, the justices unanimously ruled against the farmer.
Government’s claim that Mr. Filburn’s wheat meant he would not be buying it and that affected interstate commerce.
It also argued if the price of wheat rose, which is what the government wanted, Mr. Filburn might be tempted to sell his surplus wheat in the interstate market hence thwarting the government’s objective. The justices bought it.
After Wickard, it was all downhill. The entire makeup of civil rights legislation stands on commerce power.
Under this maximum definition of commerce power, the government has been free to regulate everything, including a restaurant owner’s bigotry.
The court has said if Congress sees a link to interstate commerce, it is not the role of the court to second guess.
In 1990, the Congress passed a law forbidding possession of a firearm within 1,000 feet of any school.
The Gun-Free School Zones Act was touted to be for education and against violence among school children.
Two years later a 12th grader carried a concealed .38-caliber pistol to school. He was initially charged under Texas law which forbids carrying guns on school grounds, but the next day, federal agents charged him with violation of the Gun-Free School Zones Act and the state charges were dismissed.
So, what does the commerce clause have to do with students bringing guns to school? A majority of the Supreme Court said "nothing."
It’s been a really long time since the Court last refused to let the federal government use the commerce clause to expand its power. That’s why the Lopez case is so important.
Now several states are passing laws stipulating their sovereignty. In fact, Montana passed a law that in effect said any guns manufactured in Montana and stay within the state are none of the feds’ business. What a concept!
The backers of such laws admit the federal courts may not respond well to such a challenge, however, the intent is to change the political landscape in the long term.
They hope these laws will undercut the legitimacy of contrary federal laws and push the courts to accede to the popular wind.
Hopefully the public opinion in favor of such a change is growing and people will realize the essence of how our Constitution intended power to be distributed. Most of it remaining with the states and the people. Now, there’s a change I can live with.
