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IN LIGHT OF THE PAST

Reining in Comme rce Abuse


ne of the greatest weaknesses of the Articles of Confederation was that the states were left to their own devices concerning trade . T his led to meddlesome trade restrictions that hampered economic growth. The power of Congress to "reg ulate commerce with foreign nation s, and among the several States, and with the Indian tribe s" was seen as a most necessary part of the Constitution of 1787. In The Federalist, #11 , Hamilton argued that the Commerce Clause would, among other thing s, enrich the state s through an unhindered "interchange of their respective productions," and provide the general government with revenue from duties and excises, thus avoiding the burdens of direct taxation. During the ratification debates there was concern that the federal government would use its power over inter state commerce to create monopolies. Also, the Southern states were concerned that the Northern states would enact oppressive tariffs to benefit manufacturers at the expense of agriculture.

Put to the Test Following ratification of the Constitution, federal control over interstate and foreign commerce greatly enriched the states as commercial barriers were torn down . Nevertheless, there was always the danger of a broad interpretation of the clau se. In a landmark Supreme Court decision in 1824, Chief Justice John Marshall held that Congress' authority to regulate commerce was plenary . Such an unlimited power in the hands of government could only turn into a penal power and threaten the libertie s of the people. Fortunatel y, subs equent Courts defined commerce in such a manner as to forestall an enormous expansion of the federal government into the peculiar local affairs of the people of the states. When the federal government sought to apply the vague Sherman Act, which prohibited "every combination .. . in restraint of trade ," to the American Sugar Refining Company, the High Court became skeptical. The Court held in United States v. EiC. Knight Co. (1895) that by
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simply purchasing the E .C . Knight Company, the American Sugar Refining Company was not restraining trade or commerce even though it controlled over 90 percent of the nation 's sugar refining capacity. The Court realized that "commerce succeeds to manufacture and is not a part of it." A general government with the power to control the manufacture of article "x" was beyond the wildest dreams of the Framers. But the strict view of commerce enunciated in Knight was abandoned in a progression of cases. Nonetheless, it was not until 1942 that the Court finally let the genie out of the bottle. Under FOR 's second Agricultural Adju stment Act (AAA), Filburn, an Ohio farmer, was fined by the government for planting 23 acres of wheat instead of only II as instructed by Big Brother. Even though Filburn planned to use the extra 12 acres for consumption on his own farm, the government sought to penal ize him . In Wickard v. Filburn the Supreme Court uphe ld the government's reg ulation of Filburn 's heinous crime - selfsufficiency. The Court reasoned that had Filburn not grown his own wheat he would have bought wheat on the market and that purchase co uld have affected the price of wheat that was transported in interstate commerce. With this expansive reading of the Commerce Clause, the federal government was given the green light to further enlarge its authority. The Commerce Clause became the answer to all of the nation's prob lems . Under the Civi l Rights Act of 1964, Congress used the Commerce Clause to force private businesses to open their doors to everyone, creating, in effect, a requirement to serve. The distinctions between public utilities such as the gas , water, or telephone company, and private enterprises were cast aside . Small mom and pop stores lost control of their affairs. In Heart of Atlanta Motel v. United States, the Court upheld the Civi l Rights Act of 1964, declaring that "the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including

local activities .. . which might have a substantial and harmful effect upon that commerce." Federal power over interstate commerce had thus been transformed from a device to enhance trade among the several states into a federal police power that makes a mockery of the idea of limited and enumerated federal powers. Return to Reason However, reason appears to be taking the field once again . In April the Supreme Court struck down the Gun-Free School Zones Act of 1990. Under this act Congres s used the Commerce Clause to make it a federal offense "for any individ ual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." Chief Justice Rehnquist rejected the arguments of the Clinton Adm ini stration that guns in or near schools are deleterious to the learning environment, make children less productive once they get into the workforce, and thus affect interstate comme rce. "If we were to accept the Government's arguments," wrote Rehnquist in United Stat es v. Lope z, "we are hard-pressed to posit any activity by an individual that Congress is wit hout the power to regulate." Though the decision does not bring the interpretation of the Commerce Clause back to the sanity of original intentions, it is a step in the right direction. Lopez does much to begin the restoration of our battered federal system by reining in one of the most abu sed clauses of the Con stitution. In fact , it is the first time since 1936 that the Court has overturned a federal law on the grounds that it exceeded the commerce authority. The Co mmerce Clause serves as an example of how a clearly defined constitutional provision can be twisted and turned by designing politicians into a device to oppress the people. Though time s may change, the original intention of the Framers - limited government - remains the firmest foundation on which to interpret the Constitution .
WILLIAM J . W ATKINS JR.

THE NEW AMERICA N / A UGUST 7, 1995