The Commerce Clause
The use of the commerce clause by
the federal government has been highly disputed and interpreted differently by
many scholars. What we see today is a far cry from our country upon its
inception in 1776, but we still have the same debate that was had in those
days: Do we want to allow the federal government to be centralized and powerful
or should it be limited in scope and influence? The commerce clause of the
United Sates Constitution has been one of the primary culprits responsible for
the federal governments expanded powers. This essay will discuss the text of
the commerce clause, how it has been used to expand the federal government’s
influence on various aspects of American life and business, the case for the
expansion of power and the case against the expansion of power.
In the United States Constitution
the commerce clause reads as follows: “The Congress shall have Power... To
regulate Commerce with foreign Nations, and among the several States, and with
the Indian tribes” (Ivers, 2013). Let’s examine this sentence and determine
what exactly it means. It states that Congress shall have these powers, which
is referring, of course, to the federal Congress. The powers include regulating
commerce between foreign nations, the states and with the Indian tribes, but
what does that mean? Perhaps we should be asking what the definition of the
word commerce means? The definition of commerce is “an interchange of goods or
commodities, especially on a large scale between different countries (foreign
commerce) or between different parts of the same country (domestic commerce)
trade; business” (Dictionary, n.d.).
When discussing the definition of commerce it is important
to note that during the Constitutional Convention James Madison took extensive
notes on the proceedings. According to Mr. Madison’s notes, “in no instance is
the term "commerce" clearly used to refer to "any gainful
activity" or anything broader than trade” (Barnett, 2001). Why is this
important? The reason is because the commerce clause we see today is used as
justification for the federal government’s involvement in situations that
cannot sanely be described as trade.
For example, in the Gonzales v. Raich Supreme Court case
the United States federal government, using the Drug Enforcement Agency, seized
and destroyed six marijuana plants owned by a Californian citizen; however, California’s
Compassionate Use Act authorized marijuana use for medicinal purposes and
allowed for patients to grow a limited amount of marijuana to that end. The
Drug Enforcement Agency used the Controlled Substances Act as justification for
their raid and the case went to the Supreme Court. The court decided that even
though the marijuana was grown for personal use and was never intended to be
traded, sold or travel across state lines that the federal government still had
the authority to regulate the commodity based on the powers given to it by the
commerce clause and using established precedent. The court deemed that “Congress’
power to regulate purely local activities that are part of an economic “class
of activities” that have a substantial effect on interstate commerce is firmly
established” (Gonzales v. Raich, 2004).
According to the court, Congress had the power to regulate
interstate commerce that was not interstate nor, by definition, commerce!
However, it is not the first time this had happened, in fact, they were
following a precedent which was established in the Wickard v. Filburn Supreme
Court case. Most of us have never heard of this case, but it is responsible
expanding the limits of the federal government’s regulatory powers under the
commerce clause.
This case came about in the wake of the New Deal, in 1941,
when Congress amended the Agricultural Adjustment Act, which put a cap on how
much wheat that farmers could produce. If that cap was exceeded the farmers
would be subject to a penalty or tax. Roscoe Filburn was an Ohio farmer who owned
a small farm which produced wheat. Some of the wheat was meant for feeding his
livestock and some was meant for selling on the market. The case was heard by
the Supreme Court and Filburn argued the federal government had no right to
tell him what he could and could not grow on his own land for personal use. The
federal government argued that though Filburn’s personal use may seem like a
trivial amount of wheat, if farmers around the country were allowed to do the
same thing, it would essentially make the cap established by the Agricultural
Adjustment Act useless. The cap was established to help control the prices in
the American wheat market. “The Court established that Congress can regulate
purely intrastate activity that is not itself “commercial,” i.e., not produced
for sale, if it concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market in that commodity” (Gonzales
v. Raich, 2004).
Now that we have addressed some of the historically
relevant cases considering the commerce clause as well as the definition of
commerce itself, let’s discuss the cases for and against the use to the
commerce clause. The case for the commerce clause, would be a similar case that
was made during the Constitutional Convention by the Federalists. They wanted a
strong, centralized federal government that would be capable of dealing with
any problem that the nation faced. For example, the New Deal set forth a
tsunami of regulations by the federal government which attempted to put
Americans to work and instill confidence in the American people concerning
industry. Every aspect of American life and business was touched by these new
regulations.
As for the reasons why the federal government’s use of the
commerce clause can be supported, we can simply look at the creation of the
United States. There was a lot turmoil when America was using the Articles of
Confederation and much of that turmoil arose from interstate commerce. States
were imposing tariffs on goods produced from other states and creating
hostilities between each other. It looked as though America was going to tear
itself apart. The Federalists argued that a strong, centralized federal
government would be the glue that held the country together. In fact, James
Madison, who originally was a Federalist, but eventually changed sides and
became an Anti-Federalist said in a letter to Thomas Jefferson: “[m]ost of our
political evils may be traced to our commercial ones” (Ivers, 2013). That was
the reason the commerce clause was inserted into the Constitution. It was meant
to create stability and resolve these disputes.
On the other hand, let’s remember what kind of government
our founders were beholden to prior to the revolution. It was a strong,
centralized federal government that used its power to impose its will on the
American colonists. The Anti-Federalists were very concerned about creating the
same kind of tyranny that they had just fought a bloody war to escape. When
discussing the commerce clause it is important to ask ourselves the question:
what would the Anti-Federalists have to say about how the federal government
uses this innocuous blurb of the Constitution? It’s easy to argue the point
that the Supreme Court itself would be on the side of the Federalists. It’s
equally easy to argue the same for Congress and the President, but what would
those who opposed centralized federal power have to say about the commerce
clause's use today?
I believe that the Anti-Federalists would be shocked at how
the Supreme Court has interpreted the clause. The court has taken an extremely
liberal interpretation of the clause to mean that Congress has the power to
literally regulate anything and everything. These powers were not expressly
given to Congress in the Constitution and to make matters worse, the power of
the Supreme Court to be the ultimate arbiter of all things Constitutional was
not given to them by the Constitution either. They gave that power to
themselves! Our government now regulates everything from what we can put into
our bodies to how much water a toilet can hold. They can tell us what we can
grow for our own personal consumption. Our current model of federalism where
states and the federal government share power is growing disproportionately in
the federal government's favor. States are losing the ability to govern
themselves without the long arm of the federal government reaching in to
enforce its will and I fear that this trend will only worsen as time goes on.
What I believe is the most poignant argument to be made against the way the
federal government uses the commerce clause is the mere definition itself. The
government is now exceeding its powers based on definition alone. If commerce
is trade, as defined during the Constitutional Convention, then the federal
government has absolutely no justification to tell us what we can do with goods
for personal consumption.
In conclusion, the Supreme Court is responsible for the way
the commerce clause has been used by the federal government. The Wickard v.
Filburn case create the precedent for the way the Supreme Court interprets the
case to this day. Based on that precedent the federal government was given
broad regulatory power to control business, industry and the way many Americans
live their lives. No one can know for sure what the founder’s intent was with
the creation of the commerce clause, but the debate for and against a strong
federal government will continue to rage on.
References:
Ivers, G.
(2013). Constitutional law: An introduction. San Diego, CA: Bridgepoint
Education, Inc.
GONZALES
V. RAICH. (2004, November 29). Retrieved January 13, 2015, from
http://www.law.cornell.edu/supct/html/03-1454.ZS.html/
