Jury-rigging Federal Commerce Power
How legalistic baling wire, duct tape and flour paste have been used to cobble together
a Rube Goldberg apparatus of legal precedent
Gary Marbut © 2010
In the recent, landmark free speech case Citizens United v. F.E.C., U.S. Supreme Court Chief Justice John Roberts
elaborated about when it is acceptable for the Court to overturn
precedent: “... if adherence to a precedent actually impedes the stable
and orderly adjudication of future cases, its stare decisis effect is
also diminished. This can happen in a number of circumstances, such as
when the precedent’s validity is so hotly contested that it cannot
reliably function as a basis for decision in future cases, when its
rationale threatens to upend our settled jurisprudence in related areas
of law, and when
the precedent’s underlying reasoning has become so discredited that the
Court cannot keep the precedent alive without jury-rigging new and
different justifications to shore up the original mistake.” (Emphasis added)
How the federal government was formed
The federal government was created by the states. The states are
the principals and masters, and the federal government, the United
States of America, was created by the states to be a servant and agent
of the states. When the several states created the U.S., that
creation was accomplished by a very specific, written charter, the U.S.
The Constitution not only authorized a specifically limited role and
set of powers for the new federal government, it also clearly staked
out topical areas where the federal government is prohibited to
tread. One of the limited areas of power given to the federal
government is the "Commerce Clause," found at Article I, Section 8 of
the Constitution. That clause says: "The Congress shall
have power … To regulate commerce with foreign nations, and among the
several states, and with the Indian tribes;"
Those who engendered, empowered and chartered the new federal
government (the several states) also carved out and described a
significant amount of topical turf the new federal servant and agent is
not allowed to invade. These specific restrictions are spelled
out in the Bill of Rights, the first ten amendments to the
Constitution. Of those, most important to this discussion are the
Ninth and Tenth Amendments, which say:
The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.
Tenth Amendment. The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
The colonial problem to be addressed
The thirteen original colonies experienced some problems operating
under the Articles of Confederation. The Articles set up a weak
and loose coordinating body in an attempt to work out ways the colonies
could cooperate. During this period, some colonies would prey on
the goods produced by other colonies, either to raise revenue or to
give market advantage to producers of the same or similar goods
produced by the predatory colony.
Two hypothetical examples may help explain this. Suppose that
South Carolina were shipping tobacco to New York market. Suppose
on passage through Virginia, Virginia slapped a transit tax on that
product, a tax equal to 100% of the market price of tobacco, done to
give Virginia a more favorable position in the New York market for
Virginia tobacco. That would make Carolina tobacco unable to
compete with Virginia tobacco, pricewise.
Suppose New York wanted to protect a fledgling industry in the
manufacture of firearms. It might have imposed a stiff tax or
other import restrictions on rifles made in Pennsylvania, or even in
all other colonies.
In founding era discussion about the need for the new federal
government to be able to "regulate commerce" "among the several
states," most of the conversation seems to have centered on maritime
shipping trade, much of it about colonies' commerce with Europe.
So, the problem the founders sought to solve with the commerce clause
was inequities in commerce between various colonies, a problem that
could not be solved with the powers granted under the Articles of
Parsing the words - what did they mean, then?
What do the effective words mean, "regulate" "commerce" "among the
several states"? More importantly, what did these words mean to
those who gave these words authority by adopting them, the ratifying
conventions of the several states? It matters not what these
words might have meant in Portugal at the time, or what they might mean
in India today. And, although it matters what these words meant
to the average person at the time, or even to the drafters of the
Constitution, it matters most what these critical words meant to those
who adopted them, the ratifying conventions.
From examination of the evidence of those times, it is pretty clear
what "regulate" did not mean. It did not mean "to
prohibit." Those who approved "regulate" knew well the word
"prohibit." One may presume that if they had meant "to prohibit,"
they would have said "prohibit." Looking at other uses of
"regulate" in the Constitution, and ratification discussions, it is
clear that this critical word was used in the context of "to make
regular," to allow the new Congress to make the rules and practices for
commerce the same across the colonies so that none could play the
predatory game that this language and power sought to interdict.
The intent was to encourage or enhance commerce among the several
states by having power to set rules to make commerce regular. It
is certain that if the language proposed by the constitutional drafters
had been to give Congress the power to "prohibit commerce … among the
several states," the discussions in the ratifying conventions about
this clause would have been quite different. The colonies wished
to encourage commerce, not limit or suppress it. The colonies
were anxious for prosperity. How would prohibiting commerce have
served that end?
It seems apparent that the use of "regulate" in the Commerce Clause was
intended and accepted to mean to "make regular" or to "facilitate by
providing uniform rules," but not to "prohibit."
There is a great deal of debate about how deep into the microeconomic
details of economic activity the word "commerce" was intended to
allow. Among those who ratified the Commerce Clause, "commerce"
clearly included national trade with foreign nations and maritime trade
among the colonies. Gross trade seems to have been the intended
target, but not just any gainful activity, or anything that might have
had some tenuous connection with commerce. At the time,
"commerce" was not thought to include agriculture, mining, manufacture,
or any other sort of production of goods.
Suppose, for example, it had been proposed before ratification of the
Constitution, that the commerce clause would be interpreted to empower
Congress to choose between oil lamps and candles as proper lighting,
and to impose that choice upon all individuals living in the colonies,
from the city of Philadelphia to backwoods residents of North Carolina.
Or suppose some prophetic person was to have asserted the commerce
clause to create power for Congress to select between cotton wicks for
candles and silk wicks. That person would have been ridiculed
beyond imagination. Yet Congress now asserts the power to choose
fluorescent lights over incandescent lights, and the power to enforce
that choice on all individuals, all under the presumed power to
Very clearly, those adopting the Constitution did not see "commerce" as
including agriculture, mining, retail merchandising, barter or
"artificing" (producing goods). In the minds of the ratifiers,
"commerce" only applied to gross trade.
Among the several states
Before the Declaration of Independence, the various geopolitical parts
of America were thought of as "colonies," colonies of England.
Upon declaring their independence from England, these colonies became
something else. They called themselves states. As "states,"
they thought of themselves as sovereign geopolitical entities within
their geographical boundaries. By sovereign, they understood and
intended that no outside entity, especially England, had any authority
to command the conduct or affairs of these now-separate states.
They claimed the usual powers of states of that era, such as to
negotiate with other sovereign entities, to make treaties, to defend
their borders and territories, etc.
"Among" had the meaning at the time of the Constitution's ratification
that it does now, which does not include "within." If we were to
say, "Among the children wishing to purchase ice cream they had $5," we
do not take from that that the money is inside of or within each
child. Clearly, "among" has meaning similar to "between," or in
the context of the Commerce Clause "from one to another."
Understanding the nature of the problem the Founders wished to address
with the Commerce Clause power corroborates this view.
There is yet another route to the same conclusion. The full
Commerce Clause says: "The Congress shall have power … To
regulate commerce with foreign nations, and among the several states,
and with the Indian tribes;" Why would the Founders have listed
these three distinct areas of commerce if their intent had been to give
Congress the power to regulate all commerce? They could simply
have said "The Congress shall have power … To regulate commerce;" which
would have semantically included commerce "within" states. Or,
they could have said, "The Congress shall have power … To regulate
commerce with foreign nations, and among and within the several states, and with the Indian tribes;" They did not.
Said differently, there would have been no point to saying Congress
could regulate commerce "with foreign nations," "among the states" and
"with Indian tribes" if the purpose were to allow Congress to regulate
all commerce. It is simply not an option to declare that the
Founders were incompetent wordsmiths and were incapable of stringing
together the right words to express what they really meant, or to say
that they used extra words that had no meaning or consequence.
How we got where we are now
Although it isn't specifically authorized in the Constitution, the U.S.
Supreme Court figured out early on that it had the authority to decide
which laws Congress passes are and are not within the powers granted
Congress in the Constitution - which laws are "constitutional" and
which are not. This principle was established in Marbury v. Madison
in 1803. And, this power seems to be consistent with the intent
of the Founders to have the different branches of government check each
Up until the 1930s, the Supreme Court used this power to rein in
congressional excesses in Commerce Clause assertion. The last two
cases in which the Court used its power to declare Congress-passed laws
to be beyond the power of Congress to "regulate commerce … among the
several states" were the Carter Coal and Schechter Poultry cases.
However, the New Deal was in full swing. In cooperation with
President Franklin Roosevelt, Congress was busy passing all sorts of
laws intended to bail the U.S. out of the "Great Depression".
Many of these laws had the effect of massive shifts of effective power
from people and states to the federal government. When the
Supreme Court invalidated federal authority in Carter Coal and Schechter Poultry
cases, a very frustrated President Roosevelt threatened to pack the
Court, to expand the number of justices from nine to 15, and to ram
through Court appointments of new justices sympathetic to his New Deal
programs intended to vest more power in the federal government.
This threat was very contentious nationally, and some say cost
Roosevelt a lot of never-regained political capital.
Nevertheless, it worked. The (then) recent decisions restraining
federal power had been narrow, 5-4 votes on the Court. Under the
threat of Court-packing, Justice Owen Roberts switched sides on review of New Deal programs.
The next major Commerce Clause case to come before the Supreme Court was Wickard v. Filburn,
in 1942. Wickard was the Secretary of Agriculture and Roscoe
Filburn was a farmer. In order to attempt to bolster wheat
prices, Congress had authorized the Secretary of Agriculture (Agricultural Adjustment Act
to implement wheat-growing quotas, for states, for counties within
states and for farms within counties. Filburn grew the allowed
acreage of wheat, plus some more to feed his family and
livestock. Officials of the Department of Agriculture fined
Filburn for planting, growing and harvesting the extra wheat.
Filburn sued, claiming that Congress lacked authority under its power
to "regulate commerce … among the several states" to tell him he
couldn't grow wheat for strictly on-farm use, to feed his family and
livestock. Filburn's claim that the extra wheat never left his
farm was not contested.
In Wickard v. Filburn, Justice
Roberts caved to Roosevelt's threat of court-packing, switched sides,
and voted with a new 5-4 majority to affirm congressional Commerce
Clause power. In order to arrive at that conclusion, the
new Supreme Court majority had to to gin up some very inventive rationale
about how growing and using on-farm wheat was subject to the authority
of Congress to "regulate commerce … among the several states".
The majority decision "reasoned" that if Filburn had not fed his extra
wheat to his family and livestock, it might have traveled across a
state line, and that if every farmer did what Filburn had done then the
practice would have enough aggregate effect that it could affect
To get there, the Court had to redefine "regulate" to mean
"prohibit." It had to redefine "commerce" to include agriculture
and production of goods. And, it had to redefine "among" to mean
"within." Although the Court did not also redefine the word
"states," it did effectively redefine the relationship between the
national government and the states.
The bare, distilled facts of the Wickard decision are these: By redefining the words of the Constitution to mean something different and new, the Wickard
Court handed Congress and the federal government the full power to
prohibit every U.S. citizen from growing food on his own property to
feed his family. It's actually worse than that. Using the
rationale' of Wickard,
Washington may now regulate, mandate or prohibit nearly any individual
conduct or endeavor, even if it happens entirely on your own property,
all under the subterfuge of regulating "commerce … among the several
states." How Orwellian this is!
This was a twisted, dark linguistic stunt never equaled in American
jurisprudence, all done to hand the federal government carte blanche
power to effectively regulate, mandate or prohibit anything at all.
There have been some thin but ineffective attempts since Wickard to limit federal Commerce Clause power, including U.S. v. Lopez and U.S. v. Morrison. However, any benefit from those attempts was lost in Gonzales v. Raich in 2005.
California had passed a law (the Compassionate Use Act
- done by popular initiative in 1996) allowing the production and use
of marijuana for medicinal purposes. Notwithstanding this
authorizing state law, federal officials continued arresting and
prosecuting California medicinal marijuana providers and users,
asserting violation of federal "narcotics" laws, laws based on the
power of Congress to "regulate commerce … among the several states".
Angel Raich was a California medical marijuana user who sued the U.S.
Attorney General, Alberto Gonzales, asserting that criminalizing
state-grown and state-retained medical marijuana was beyond Congress's
Commerce Clause power. When the case got to the Supreme Court,
the Court affirmed the power of Congress. To do so, yet another
set of mental gymnastics was required. In Raich,
the Court "reasoned" that even though there is no legal interstate
commerce or marketplace in marijuana, since medicinal marijuana is
indistinguishable from non-medicinal marijuana, the use of medicinal
marijuana could have some possible affect on the illegal marketplace
(it could displace marijuana illegally transported across the state
line), and therefore medicinal marijuana was subject to the power of
Congress to "regulate commerce … among the several states".
As the reader can see, what power Congress may assert under the
Commerce Clause has been changed dramatically since the 1930s, change
made by the U.S. Supreme Court, and driven by a federal government with
an unquenchable lust for power. This power is only available if
taken from individuals and states, and is implemented with the power of
the federal government to take freedom of choice and liberty from
individual people (such as requiring that individuals may only use
showerheads that flow a certain amount of water and a great deal of
other micromanagement of the individual lives of a supposedly free
To accomplish this great change and shift of power, the Supreme Court
has had to engage wholesale in exactly the sort of "jury-rigging new
and different justifications to shore up the original mistake" that
current Supreme Chief Justice Roberts spoke of very recently in Citizens United v. F.E.C.
It is beyond time for the Supreme Court to assign to the dumpster of
history the ridiculous Rube Goldberg contraption of baling wire and
duct tape that modern Commerce Clause jurisprudence has become.
The pending litigation to validate the principles of the Montana Firearms Freedom Act, MSSA v. Holder, is intended to be the case in which that should happen. It's time for the Roberts of 2010 to trump the squishy Roberts of 1942.