In the last installment of this series, we looked at Article I of the Constitution, wherein we
the people created the US Congress and granted some limited powers to that body. This time we will consider the
commerce clause, found in Section 8 of Article I. Misuse of the commerce clause has been one of the favorite methods
used by those who want to circumvent the Constitution’s limits on government power.
When the states were considering whether to ratify the Constitution, most statesmen recognized
a need for uniform treatment of interstate commerce throughout America. Under the Articles of Confederation, the
states often treated each other as if they were foreign countries. They had all kinds of discriminatory taxes,
licensing provisions, port regulations, and the like. Trade arrangements with foreign countries also varied from
state to state.
Alexander Hamilton described the problem thus: "The interfering and unneighbourly regulations
of some States, contrary to the true spirit of the Union, have in different instances given just cause of umbrage
and complaint to others...we may reasonably expect...that the citizens of each, would at length come to be considered
and treated by the others in no better light than that of foreigners and aliens."
James Madison further explained as follows: "It will be a principal object to guard against
smuggling...We are now obliged to defend against those lawless attempts, but from the interfering regulations of
different States, with little success...New York levies money from New Jersey by her imposts. In New Jersey, instead
of cooperating with New York, the Legislature favors violations on her regulations."
To solve the problem of trade war among the states, the Constitution gives Congress the power
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."
The word "regulate" meant, at that time, to make regular, or uniform. The clear intent was to give Congress
the power to prevent the kind of discriminatory trade practices among the states noted above. As Madison added
to his comments previously quoted, "This will not be the case when uniform regulations will be made."
Early uses of the commerce clause were consistent with these purposes. For example, a man named
Thomas Gibbons obtained a federal license to operate steamboats along the east coast. His business conflicted with
the monopoly granted by New York state to another man, Aaron Ogden. The Supreme Court decided that the federal
law superceded the state law in this case, because Congress had the power to regulate commerce between the states.
This legitimate use of the commerce clause has continued to the present day. As recently as February of 1996, the
Supreme Court struck down a North Carolina intangibles tax because it discriminated against businesses located
in other states.
Unfortunately, there will always be people who try to increase their power over the lives of
others. Many of those we elect to represent us in Washington fit this description. Soon after the birth of our
nation, politicians were poking around for loopholes in the Constitutional safeguards against the growth of federal
power. With the commerce clause they hit the jackpot.
The Supreme Court tried to stem the tide by holding legislation to the limits defined by the
enumerated powers. Pressure from Congress and presidents gradually overcame the resistance of the courts. The first
big crack in the defense appeared in 1889, when the Supreme Court ruled that the commerce clause was a positive
grant of power to regulate the economy. They actually came out and said that "The reasons which may have caused
the framers of the Constitution to repose the power to regulate commerce in Congress do not...affect or limit the
extent of the power itself." Once the reasoning of the writers of the law is ignored, any interpretation becomes
possible.
From 1889 to 1941, the Court maintained some restraint on Congress, holding them to regulation
of activities that directly involved interstate commerce. The laws they upheld still did not conform to the enumerated
powers, but at least the justices were careful to look for some real connection with interstate commerce.
In 1941, the Supreme Court opened the floodgates completely. A farmer named Filburn was fined
by the federal government for growing 461 bushels of wheat, when the Agriculture Adjustment Act allowed him only
222 bushels. Even though Filburn used the excess only on his own farm for feed and for his families needs, the
Court ruled that he affected interstate commerce, and therefore came under Congress’ regulatory jurisdiction.
Since the courts had obviously abandoned any attempts to limit the regulatory spree of Congress,
government control over the economy and other aspects of American life grew like a malignancy. Even when Congress
didn’t actually mention the commerce clause in a law’s text, the Justice Department used it in arguments before
the courts to defend laws favored by the current administration. As a result, government which consumed 3 percent
of the economy’s output at the start of the Depression now consumes about 25 percent. The genie of big government
had been released after 150 years of being trapped in the bottle; and he has no intention of being bottled up again.
Things were looking pretty hopeless for American liberty. Then came the election of 1994, with
the unexpectedly strong support among voters for bringing the government back under control. Even more surprising
was the 1996 Supreme Court decision in United States v. Lopez. We’ll examine this hopeful sign of a return
to sanity in the next installment.
|