Article 1, Section 8:
"The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
"To borrow Money on the credit of the United States;
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
"To establish a uniform Rule of Naturalization...."
Or, to take the Commerce Clause by itself:
"Congress shall have the Power To regulate Commerce among the several States, [and in a few other areas] ...."
Seems pretty straightforward. If Company A in Utah is selling widgets to Customer B in Nevada, then the Federal government has some say in how they do it. But if Company A in Utah is also selling widgets to Store D across the street, the Federal government has no say in how they do that.
Alas, enter the lawyers... and their clients who want to expand the power of the Federal government.
Suppose Company A has a problem, and decides that it has to fire 1/10 of its employees. The employees think it's unfair, and complain to the Federal government. Can the Federal government step in, under the Commerce Clause, and prevent them from doing it?
The answer should be, Of course not. Selling to Company B is interstate commerce, but firing employees within Utah is not interstate commerce, it's firing employees.
Well, some lawyers and pundits make the argument that, if the employees are fired, the company won't be able to make quite as many widgets, and so won't be able to sell quite as many to Company B in Nevada, and so the Interstate Commerce carried on by the two companies will be affected... and so, the Federal Government can regulate the firings under the Commerce Clause.
Kind of a stretch? Wait, it gets better.
Recently a case was brought before the Supreme Court, concerning a high school student who brought a gun to his school (no, he didn't shoot anybody). He violated a new Federal law forbidding anyone to bring a gun within 1,000 feet of a school.
The good part is, that this Federal law was enacted, using the Commerce Clause as justification (says so in the actual law). Arguing the case before the Supreme Court, the government said that this was justified because: (1) Someone who brings a gun to a school, might commit a violent act with it; (2) Increasing gun violence at schools could diminish the quality of education given by the school; (3) diminished quality of education would likely lessen the students' abilities after they graduated and entered the real world; (4) Lower abilities might cause the company that hired those students, to be less productive; (5) If the company was engaged in interstate commerce, its lower productivity might cause it to ship less product to its out-of-state customers; (6) and this is an effect on Interstate Commerce, so the Federal Government has the power to regulate guns in or near schools.
No, it's not a joke. This argument was actually presented to the Court, by lawyers with perfectly straight faces.
This Commerce-Clause tactic was not new. In fact, arguments along these lines have been used, almost since the day the Constitution was ratified, in attempts to expand the Federal Government's power to control almost anything that could possibly have an affect on interstate commerce, no matter how remote or farfetched. As you can see, this long chain of "related effects" can be used to justify control of almost any human activity, if left unchallenged.
That's hardly the reasons behind the Commerce Clause, envisioned by the original writers of the Constitution. They set up a government of limited powers, by specifying those powers in the Constitution, and commanding that all other powers be assigned to the states or people.
It wouldn't have made much sense, for them to take all the trouble of writing out certain powers of the government such as coining money, setting up Post Offices, punishing counterfeiters, offering patents for inventions, etc.... and then throw in a phrase that meant the government could control virtually every human activity. Why bother naming some specific powers, when the other phrase covers those plus almost everything else?
If the Commerce clause were that kind of blanket permission, then 3/4 of the Constitution could be tossed out, because it would already be covered.
And that view was simply that the Commerce Clause was never intended to change the limited nature of the Federal government, by regulating things far removed from the actual acts of interstate commerce. The Constitution had a certain meaning, and "events do not change Constitutions". Only the amendment process could alter the meaning of the Commerce Clause. And the people advocating change, avoided such a public referendum like the plague.
Upsetting the Applecart
The idea of limited government, and the limited nature of the Commerce Clause, lasted until two events occurred together: one old and one new.
The "old" event was the Great Depression, which started elsewhere and spread to this country in the late 1920s. Depressions and financial panics were nothing new to the United States, having happened regularly throughout the 1800s and early 1900s. Examples are the Panic of 1837, the recession of 1857, the Panic of 1873, the Panic of 1893, and the recession of 1921. All were preceded by extensive government dabbling in formerly-private projects and financial markets. And all were characterized by steeply rising unemployment, falling prices and wages, decreasing production, and loss of confidence in the nation's financial health. When the government projects collapsed and people realized they had to fend for themselves, they absorbed the painful losses, and recovery then took place. Things were more or less back to normal within a few years.
But, by the 1930s, a second element had joined the Depression that showed up in 1929: instantaneous, one-way mass communication, usually via radio. The advocates of government expansion used it effectively, to persuade people desperate for solutions, that Government could fix the problems they faced, without having to go into detail of how fixes would be done or what other things might also be affected. No mention was made of the ideals of personal independence and liberty; and no mention of Constitutional bans on such government "help". People heard what they wanted to hear, that the problems would finally be taken care of, and they ate it up.
Since the founding of the country, people had relied on their own experiences and those of their friends and neighbors, to decide how to solve their problems. There was literally no other source of information, save an occasional telephone contact with a person outside their community, or a newspaper or speech from a traveler-- usually taken with a healthy grain of salt.
But in 1921, the first commercial radio broadcast station received its license, and by the 1932 elections, nearly 2/3 of all American households had radios, listening to more than 600 stations nationwide. Now they were treated to a deluge of rhetoric delivered nationwide, in ringing tones, stating the "everyone knew" that the solution lay in Government. People had little opportunity to ask for details of how government intended to make such sweeping changes-- talking back to the radio, merely made them look silly. Millions of people desperate for solutions, watching their businesses wither away and their families go hungry, grasped avidly at these straws. They elected a new President in 1932, who had promised to the avid listeners to make government fix things; and who brought with him thousands "whiz kids" to set up new government departments and exert new controls on the nation's economy. The population of bureaucrats in Washington, DC nearly doubled, in the two years after the election-- most going into the new government agencies designed to help people and solve their everyday problems. And, written into many of the new laws, was the idea that many events of the Depression, were having an effect (however slight) on Interstate Commerce... and so those activities themselves, were within reach of the Federal government's power of regulation.
Wishful Thinking Butts Heads with Reality
The Supreme Court was not among those avid millions. Apparently unimpressed by the new administration's rhetoric, they stuck to their job of evaluating Federal laws for adherence to the Constitution, including the more obvious meaning of the Commerce Clause. And they began striking down the new programs as fast as cases were brought to them, pointing out that the programs exceeded the powers given to the government by the Constitution. Repeated appeals to the stretched definition of the Commerce Clause and others, were rejected as they had always been.
The Court even pointed out that, while they wished they could help with the severe problems afflicting the country in the throes of the Depression, they could no more do it by misinterpreting the Commerce Clause, than they could by robbing banks and distributing the proceeds. "Events do not change Constitutions", and their job was to enforce the Constitution, for very good reason. Only amendments changed Constitutions, and the administration was studiously avoiding the amendment procedure, admitting frankly that the people would not approve such amendment.
Frustrated by the Court's insistence upon Constitutional adherence, and unconcerned with the damage to the principles he and the Court were charged with upholding, the President embarked on an amazing course of demonizing and harassing the Supreme Court itself. Using again the new medium or radio, along with newspaper and newsreels, he announced that the Constitution should be regarded as a changeable document whose provisions should be altered to fit conditions, rather than a framework that described, and limited, the government according to a philosophy of freedom and personal responsibility. He then attacked the Court justices personally, publicly accusing them of being the sole obstacle preventing national recovery. Again the Constitution's mandates were brushed aside, and people were unable to explore the issues by asking questions to their radios and newspapers.
Finally, in a national radio address, where the President did not have to explain or answer questions, he announced a plan to put six additional justices on the Supreme Court, who would be sympathetic to his own flexible views of the importance of the Constitution. Three weeks later, the Court started reversing its own decisions and agreeing with the President's desires. (Ironically, this "Court-packing" plan never made it through Congress, but by then the damage was done).
An Abrupt Change of Course
Since the Supreme Court abruptly reversed its adherence to the Constitution in the 1930s, and began interpreting the Commerce Clause to mean that the government can regulate activities that have only the remotest relation to Interstate Commerce, programs to do such regulation have multiplied enormously. Examples are Social Security, Welfare, Medicare, and Medicaid. Presently, three-quarters of the Federal budget (in other words, three-quarters of the taxes you pay) is devoted to these programs, and service of the debts they have created.
At the same time, huge volumes of laws, unthinkable before 1930, have been imposed on the country, restricting everything from doctor-patient relationships to the operation of your toilets. All, naturally, in the name of preventing people from having any deleterious effect on each other, and so affecting Interstate Commerce.
A Return to Sanity?
Now, in the 1990s, some glimmerings of hope have begun to appear. In several recent Supreme Court decisions, the stretching of the Commerce Clause, Welfare Clause, and other phrases away from what they were intended, has come under scrutiny once again. And interpretations like those which permitted the expansion of government for the last 60 years, have now been rejected in recent cases. Furthermore, several Justices have expressed the need to re-evaluate past decisions based on such stretching of the Clauses.
That Supreme Court case where the kid brought a gun to his high school? It was decided in 1995, U.S. v. Lopez. And it's the first case that has started reversing the trend-- the majority Justices pointed out that the arguments of the government lawyers were outlandish, and that the Commerce Clause could never be stretched so far as to control guns at schools.
We have departed a long way, from the intent of the Constitution. And we face a long road back, with no assurance that we will have the fortitude to stay the course. But we have started to make the first small steps, for what they are worth.
History of the Commerce Clause
Laws and court cases challenging the extent of the Commerce Clause, began as soon as the Constitution was written. And in every case for a century and a half, the Supreme Court firmly reminded us that the Clause was not a broad permission to regulate everything that humans ever did. This trend continued day after day, year after year, with remarkably little deviation from the idea that the government had only limited powers-- those listed explicitly in the Constitution. Financial panics, natural and man-made disasters, crop failures, and wars did not change the view of the courts.