A History of Interstate Commerce Part 1: Neither Interstate Nor Commerce

The Supreme Court’s impending decision on the constitutionality of the health care bill’s individual mandate presents a golden opportunity to review the history of the Commerce Clause. That’s the constitutional provision on which the mandate’s legitimacy hinges. The Clause states that Congress shall have the power to “regulate Commerce … among the several States” [Article 1, Section 8, Clause 3].

The post-New Deal interpretation of the Commerce Clause has been used to justify a vast expansion of federal power. The case of Gonzales v. Raich (2005) is one of the most egregious examples.

The majority opinion, delivered by Justice Stevens, held that cannabis grown and consumed by the same man, and never crossing state lines, counted as “interstate commerce”; there is a rational basis for the belief that it “has a substantial effect on supply and demand in the national market for that commodity.” It was therefore a federal matter. Never mind that the marijuana was not produced for commercial use, nor did it cross state lines. Neither interstate nor commerce, it still counts as “interstate commerce.”

If non-commercial products that never cross state lines are included in the phrase “interstate commerce,” it is difficult to imagine an example of something that would not constitute interstate commerce. Federal power, then, is essentially unlimited under the Court’s current interpretation of the Commerce Clause.

Fortunately, there has been the occasional jurisprudential bright spot. In United States v. Lopez (1995), the Supreme Court limited the federal government’s legislative power under the commerce clause for the first time since the New Deal.

In that case, high school senior Alfonso Lopez was arrested for carrying a firearm on public school grounds, in violation of the Guns Free School Zones Act, which was exactly what it sounds like. Lopez argued that the legislation over-stepped the bounds of the Commerce Clause. The government’s counterarguments were especially strained.

It asserted that violent crime has deleterious effects on the economy in two ways. First, the costs of violent crimes are spread through higher insurance costs. Second, high violent crime rates make people less likely to travel to a given area. The federal government also argued that gun possession in a school zone would create an unhealthy learning environment, which in turn would result in less productive citizens. The Court’s credulity strained, and it waved off the government’s arguments. The opinion, delivered by Rehnquist, stated that the government’s arguments require the court to “pile inference upon inference.”

So the court does think the commerce clause has some limits. But what would the authors of the clause, i.e. the framers of the constitution, think about cases like Raich? What would they think about the mandatory insurance purchase provision in the health care bill? Would they support the Supreme Court’s interpretation of the commerce clause? My next post will attempt to provide an answer, and explain why the Founders included a Commerce Clause in the Constitution in the first place.