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Explore Freedom » The
Commerce Clause: Route to Omnipotent Government

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The
by Sheldon Richman August 1, 1995

In 1990, the U.S. Congress passed a law forbidding possession of a firearm
within 1,000 feet of any school. The Gun-Free School Zones Act was touted as a
blow on behalf of education and against violence among children. Two years
later, Alfonso Lopez Jr., a 12th-grader at Edison High School in San Antonio,
Texas, carried a concealed .38-caliber pistol to school. First he was charged
under Texas law, which forbids possession of guns on school grounds. But the
next day, federal agents charged Lopez under the Gun-Free School Zones Act, and
the state charges were dismissed.

Thus began one of the most important cases — and one of the most important
decisions — for the U.S. Supreme Court in the last 60 years. It would turn out
to be significant because the case bore directly on a clause in the U.S.
Constitution that almost from the beginning, and particularly since the New
Deal, has been used to justify a radical expansion of the power of the central
government in the United States: the clause that delegates to Congress the power
to “regulate . . . commerce among the several states.” The sensible person will
ask, “What does the commerce clause have to do with students bringing guns to
school?” The Court’s majority said “nothing.” It has been a long time since the
Supreme Court last refused to let the central government use the commerce clause
to expand its power. That is why Lopez is such an important case.

Let’s back up a bit. Before adoption of the Constitution, states, under the
Articles of Confederation, had erected protectionist barriers that interfered
with the free flow of trade in the new country. One of the main reasons for the
Constitutional Convention was to remedy that problem. The framers’ solution 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. We will hold until later the
question of whether this was a good way to solve the problem.)

At first, the clause was closely interpreted as referring to interference by
the states with the flow of commerce. In 1824, Chief Justice John Marshall’s
Court, in the first big case involving the commerce clause, Gibbons v.
Ogden, struck down a New York law creating a steamship monopoly for traffic
between New York and New Jersey. Marshall laid down the principle that for the
national government to have jurisdiction, the issue must involve interstate
commerce; i.e., it must involve the trafficking of goods (not manufacture)
between two or more states. He also recognized that the enumeration of the
interstate commerce power implied powers unenumerated (concerning intrastate
commerce) and thus undelegated.

Gibbons may have gotten things off to a good start, but it did not
last. Marshall sprinkled just enough bad seeds that, taken out of context, would
allow later justices, legal scholars, and political opportunists to cultivate
the commerce clause into a general power to do anything that could conceivably
affect interstate commerce.

For example, in 1870, the Court upheld federal inspection of steam passenger
vessels that remained within a single state but carrying goods shipped from or
destined for other states. The problems here were two: the inspection law was
not intended to prevent state interference with free trade, and the subject of
regulation was private enterprise. Thus, we can glimpse the beginning of the
modern view that the commerce clause granted to Congress a plenary power to
regulate anything that had the potential to affect interstate commerce.

It was a short step to creation of the Interstate Commerce Commission in
1887, which cartelized the railroads and regulated their rates.

One last barrier had to be hurdled. Taking the lead from Marshall, succeeding
courts insisted on confining the commerce power to commerce, the
movement of goods; production was regarded as prior to commerce and thus outside
federal jurisdiction. In 1895, the Court would not let the central government
use the Sherman antitrust law to stop the merger of sugar refiners. In 1903, the
Court upheld a federal prohibition on the interstate trafficking in lottery
tickets. In 1918, it struck down a prohibition on the interstate shipment of
goods produced in plants using child labor.

But as Richard Epstein has written, the barrier between production and
commerce was “not as well-defined” as the Court held. After all, a market
economy is an integrated web of activities in which everything affects
everything else, however remotely. Manufacturing arrangements can influence
commercial activities. It was only a matter of time before the barrier would
disappear and the national government would begin to regulate production
directly.

Looking back, the progression from the early cases to the New Deal, when all
inhibitions on federal regulation of the economy were dispelled, appears
inexorable. Too much had been conceded along the way. The mooring of the
commerce clause — the principle that state governments could not erect
trade barriers — was too long lost, the distinction between government and
private acts too long forgotten. (The Sherman Act outlawed private combinations
in restraint of trade.)

In 1937, the Court upheld the National Labor Relations Act, which compelled
employers to engage in collective bargaining, holding that the commerce clause
subsumed those things “affecting commerce.” In the particular case, the Court
said that phrase meant “tending to lead to a labor dispute burdening or
obstructing commerce.”

After President Roosevelt threatened to pack the Court to dilute the
influence of the uncooperative “nine old men,” a majority of the justices took
to the most expansive definition of the commerce clause like a drunk to drink.
The Court blessed the secretary of agriculture’s power to set minimum prices for
milk sold intrastate . “The marketing of intrastate milk,” wrote the
Court in the 1942 Wrightwood Dairy case, “which competes with that
shipped interstate would tend seriously to break down price regulation of the
latter.” Yes, so? What was the Court’s point? Only that nothing — especially not
liberty — should be permitted to get in the way of the national government’s
power to regulate the economy.

As hard as it may be to notice, Wrightwood Dairy still preserved
something of a distinction: the intrastate sale of milk obviously entailed an
act of commerce. Did that mean the commerce clause barred the national
government from regulating noncommercial activities? Not for long.

Enter Roscoe Filburn, an Ohio dairy and poultry farmer, who raised a small
quantity of winter wheat — some to sell, some to feed his livestock, and some to
consume. In 1940, under authority of the Agricultural Adjustment Act, the
central government told Mr. Filburn that for the next year he would be limited
to planting 11 acres of wheat and harvesting 20 bushels per acre. He harvested
12 acres over his allotment for consumption on his own property. When the
government fined him, Mr. Filburn refused to pay.

Wickard v. Filburn got to the Supreme Court, and in 1942, the
justices unanimously ruled against the farmer. The government claimed
that if Mr. Filburn grew wheat for his own use, he would not be buying it — and
that affected interstate commerce. It also argued that 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, thwarting the government’s
objective. The Supreme Court bought it.

The Court’s opinion must be quoted to be believed:

[The wheat] 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 in commerce.

As Epstein commented, “Could anyone say with a straight face that the
consumption of home-grown wheat is ‘commerce among the several states?’” For
good measure, the Court justified the obvious sacrifice of Mr. Filburn’s freedom
and interests to the unnamed farmers being protected:

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.

After Wickard , everything is mere detail. The entire edifice of
civil rights legislation stands on the commerce power. Under this maximum
commerce power, the government has been free to regulate nearly everything,
including a restaurant owner’s bigotry. The Court has held that if Congress sees
a connection to interstate commerce, it is not its role to second guess.

What is refreshing about the recent Lopez case is that five justices
were able to say that something could exceed the scope of the commerce
clause. Despite the government’s strained argument that guns in schools degrade
education and hence economic performance and interstate commerce, the majority
said a federal prohibition on such possession is beyond Congress’s enumerated
powers.

In a concurring opinion, Justice Clarence Thomas struck at the very
foundation of the modern interpretation of the commerce clause and hinted that
future cases could bring big changes.

That’s fine as far as it goes. But as Jefferson warned, the natural tendency
is for government to grow. Like a poisonous vine, it sprouts through any gap.
What is really needed is a repeal of the commerce clause and an amendment to the
Bill of Rights that says: “Congress and the states shall make no law interfering
with production and commerce, foreign or domestic.”

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This post was written by:
Sheldon
Richman

Sheldon Richman is vice president of The Future of Freedom Foundation and
editor of FFF's monthly journal, Future of Freedom. For 15 years he was
editor of The Freeman, published by the Foundation for Economic Education
in Irvington, New York. He is the author of FFF's award-winning book Separating
School & State: How to Liberate America's Families; Your Money or Your Life:
Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the
Welfare State. Calling for the abolition, not the reform, of public schooling.
Separating School & State has become a landmark book in both libertarian and
educational circles. In his column in the Financial Times, Michael Prowse wrote:
"I recommend a subversive tract, Separating School & State by Sheldon
Richman of the Cato Institute, a Washington think tank... . I also think that
Mr. Richman is right to fear that state education undermines personal
responsibility..." Sheldon's articles on population, federal disaster
assistance, international trade, education, the environment, American history,
foreign policy, privacy, computers, and the Middle East have appeared in the
Washington Post, Wall Street Journal, American Scholar,
Chicago Tribune, USA Today, Washington Times,
Insight, Cato Policy Report, Journal of Economic
Development, The Freeman, The World & I, Reason,
Washington Report on Middle East Affairs, Middle East Policy, Liberty
magazine, and other publications. He is a contributor to the Fortune
Encyclopedia of Economics. A former newspaper reporter and former senior
editor at the Cato Institute, Mr. Richman is a graduate of Temple University in
Philadelphia.

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