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Exploring the Constitution, Part 9: Regulating Interstate Commerce; the Lopez Case

Copyright 1997 by David W. Neuendorf

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My previous column on the Constitution's commerce clause closed with the hint that things might be looking up. Today, I'll examine a recent Supreme Court decision in the case of United States v. Lopez.

The case is important because it indicates that the justices may be starting to reconsider the court's extremely expansive view of Congress' power to regulate based on the commerce clause.

The facts of the case are as follows. Alfonso Lopez, a high school senior in San Antonio, Texas, was caught carrying a .38 caliber revolver to school. His apparent intent was to sell the weapon to another student.

Lopez was charged with state firearms violations, and could undoubtedly have been charged with others if prosecutors had so chosen. Instead, federal agents charged him with violating the 1990 Gun-Free School Zones Act, and the state charges were dropped. Lopez was convicted and sentenced to six months in prison and two years of parole. Lopez appealed his conviction through the federal court system.

The Gun-Free School Zones Act prohibits possession of a firearm within 1,000 feet of any school in the United States. In the appeal, Lopez's attorney chose to challenge the power of Congress to "legislate control over our public schools."

Congress did not explain in the law what Constitutional provision it believes gave it the power to pass the law. In its defense before the Supreme Court, the Clinton Justice Department cited the commerce clause as justification for the law. It argued that violent crime in or near schools harms the quality of education, causing graduates to be unprepared for gainful employment, thereby affecting interstate commerce, which Congress has the power to regulate.

In a 5-4 decision, the Supreme Court ruled against the federal arguments, striking down the law as exceeding the power of the commerce clause. In his majority decision, Chief Justice Rehnquist noted that accepting the government's reasoning would mean that "...Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presented, is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign. Thus if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."

Congress has, of course, with the blessing of the Supreme Court, used the commerce clause to extend its power over Americans for many years. For all of that time, alert citizens have been using in vain the same arguments written here by the chief justice. Finally, the Supreme Court has started to take notice of the obvious fact that this abuse of power to regulate interstate commerce eventually will lead to a totalitarian government if not stopped.

According to Rehnquist, in the Justice Department's arguments before the Supreme Court the government admitted that using its interpretation of the commerce clause would mean that "...Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce."

Now compare this admission by representatives of the Clinton appointed attorney general to comments by Clinton. After the Oklahoma City bombing, the president blamed "anti-government" speech and writings of conservatives for leading to the bombing. It is not much of a stretch to visualize this president's justice department claiming that the commerce clause gives Congress the power to regulate speech and the press.

Those who find this speculation extreme or alarmist should heed the words of James Madison. The father of our Constitution wrote that Americans must "take alarm at the first experiment upon our liberties" and that "The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

Americans should pray that the Supreme Court's decision in the Lopez case signals a turn toward curbing Congress' abuse of the commerce clause. Then they should work to replace those in Congress who continue the abuse.