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.
Ivers, G. (2013). Constitutional law: An introduction. San Diego, CA: Bridgepoint Education, Inc.
Commerce. (n.d.). Dictionary.com Unabridged. Retrieved January 12, 2015, from Dictionary.com website: http://dictionary.reference.com/browse/commerce
GONZALES V. RAICH. (2004, November 29). Retrieved January 13, 2015, from http://www.law.cornell.edu/supct/html/03-1454.ZS.html/