The Great Debate, Part 2: The Commerce Clause

In the last post we began examining the long-running debate about the proper role of the federal government. I posited that the central question of the debate is this: “Is the federal government to be a small government with a few enumerated powers or an expansive government with a few enumerated restrictions?” The “Expansionists” rest their support for the second of these options primarily upon two clauses in the U.S. Constitution, the general welfare clause and the commerce clause.

We last analyzed the general welfare clause and found that it gives Congress power to levy taxes, but gives it no sweeping mandate to pass just any law that it deems necessary to promote the general good. Now we’ll analyze the Constitution’s commerce clause which reads: “[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]”

This power to regulate commerce given to Congress is an important one. Under the Articles of Confederation, the precursor to the Constitution, states were free to place protectionist tariffs and regulations on goods coming in from other states. Imagine Iowa placing tariffs on cheese “imported” from Wisconsin or beef from Nebraska (and the tariffs those states would place upon Iowa pork and corn) and you can imagine the problems that would create for consumers and merchants alike.

The commerce clause put an end to these interstate protectionist measures and helped to turn America into a “free trade zone” and the economic juggernaut that it is today. It was put in place to streamline commerce, not to regulate every minute aspect of human existence.

In his 1995 testimony before Congress Roger Pilon, director of the Cato Institute's Center for Constitutional Studies, explained: “Not remotely did the Framers intend that the clause be converted from a shield against state abuse--its use in the first great commerce clause case, Gibbons v. Ogden (1824)--into a sword enabling Congress, through regulation, to try to bring about all manner of social and economic ends. Yet for nearly 60 years now, following the Supreme Court's reversal in 1937 (NLRB v. Jones & Laughlin Steel Corp.), that is just what has happened as Congress has claimed power to regulate anything that even ‘affects’ interstate commerce, which in principle is everything.” Let’s examine this Supreme Court “reversal” that Mr. Pilon refers to.

For most of the court’s history prior to 1937, commerce “among the several states” was interpreted as money or products moving from one state to another. In May of 1936 the court struck down one of President Roosevelt’s New Deal laws, “The Bituminous Coal Conservation Act,” which regulated coal mining. In Carter v. Carter Coal Company, the court prudently ruled that although the coal being mined may eventually end up in other states, the mining operation itself was a local activity not subject to federal regulation under the commerce clause.

Infuriated by the setback, President Roosevelt floated a plan to change the size of the Supreme Court from 9 to 15 justices. The new appointees picked by Roosevelt would presumably be acolytes of the New Deal, turning the court into a rubberstamping committee for New Deal laws.

Although Roosevelt eventually abandoned the plan, Chief Justice Charles Hughes and Justice Owen Roberts had clearly gotten the message. In 1937 both men switched sides from the Carter decision and voted for the expansive New Deal definition of interstate commerce in National Labor Relations Board v. Jones & Laughlin Steel Corporation, reversing the court’s ruling from the previous year.

Years later Justice Roberts wrote: “Looking back it is difficult to see how the Court could have resisted the popular urge ... an insistence by the Court on holding Federal power to what seemed its appropriate orbit when the Constitution was adopted might have resulted in even more radical changes to our dual structure than those which have gradually accomplished through the extension of limited jurisdiction conferred on the federal government.”

They had deliberately misinterpreted the Constitution in order to save the composition of the court. Seventy-two years of federal government expansion have been build upon this lie. The commerce clause has since been used as justification to tell supposedly free Americans everything from how many gallons per flush their toilets will use to which toxin-laden light bulbs they must bring into their homes.

There have been a few Supreme Court decisions since 1995 that have showed that the court is beginning to recognize at least some limits upon the government definition of “interstate commerce.” In U.S. v. Lopez (1995), the court ruled that possessing a gun near a school zone was not a transaction of interstate commerce, striking down the "The Gun-Free School Zones Act of 1990.” In 2000 the court invalidated parts of the “Violence Against Women Act of 1994,” reasoning (I guess) that smacking your live-in girlfriend was not interstate commerce unless she was standing on the other side of the state line at the time. Both are examples of cases best handled by local police, not the United States Congress.

It’s somewhat naïve to think that the Supreme Court, an appendage of the federal government, can be a completely impartial arbiter when divvying up power between the people, states and federal government. And, as we’ve seen, the Supreme Court can be coerced. If there is to be any hope of returning the federal government to a small government with a few enumerated powers, other remedies must be sought by the two other entities mentioned in the 10th Amendment, namely the states and the people.

We are seeing the beginnings of this very process. The people have been rising up and protesting the federal government’s unwanted wars, taxes and “entitlements.” The states, like long-abused spouses, are making the first few timid attempts at exerting themselves as equal partners with the federal government.

Next time we’ll look at one of these attempts, Montana’s Firearms Freedom Act, and the theories of state nullification and interposition.