It was some 60 years later after “New Deal” era cases involving the Commerce Clause that the Supreme Court again struck down a law of Congress as being an impermissible exercise of the commerce power.  In U.S. v. Lopez (1995) the Court took up the Gun-Free School Zones Act, which made it a federal offense to carry a firearm in a school zone.  The majority opinion by Chief Justice William Rehnquist rests on previous Commerce Clause cases to demonstrate that there were indeed some limits to what the federal government could regulate pursuant to the commerce power.  The impact of the opinion was limited, however, by the majority’s desire to stay within existing precedents, which after Wickard left very little room for defining meaningful limits to the commerce power.  Some commentators have noted that the opinion stands for the simple proposition that there must be something Congress cannot regulate under the commerce power, and that the possession of handguns in a school zone must be in that category. 

The concurring opinion by Justice Clarence Thomas has received considerable attention because it urges returning to the original understanding of the Framers, and of the Gibbons Court in 1824.  Justice Thomas relied on contemporary texts such as the Federalist Papers to show that “agriculture, commerce, manufactures,” etc., were considered to be separate endeavors.  He pointed out that “if Congress had been given authority over matters that substantially affect interstate commerce” (as the controlling precedents have ruled) then most of the other enumerated powers in the Constitution were superfluous, because almost everything “substantially affects” interstate commerce, especially in the aggregate.  “An interpretation of [the Commerce Clause] that makes the rest of [the Constitution’s enumerated federal powers] superfluous simply cannot be correct.”  Under Wickard, wrote Justice Thomas, “Congress can regulate whole categories of activities that are not themselves either ‘interstate’ or ‘commerce’ …. The aggregation principle is clever, but it has no stopping point.” 

Some commentators have gone even further.  Michael Greve of the American Enterprise Institute writes “there is no way to squeeze Wickard or any Commerce Clause case after it into the intellectual framework of enumerated powers.  If Congress may aggregate trivial activities into ‘substantial effects,’ it may regulate virtually anything; if it may not do so, it is prohibited from regulating most of the things it now regulates.” 

In U.S. v. Morrison (2000) the Supreme Court again struck down a federal law, this time a provision of the Violence Against Women Act.  Chief Justice Rehnquist, writing for the same majority that had decided Lopez, wrote “[gender]-motivated crimes of violence are not [economic] activity.  While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”  He went on to say that the “concern we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well-founded.”  He concluded “the Constitution requires a distinction between what is truly national and what is truly local.  In recognizing this fact we preserve one of the few principles that have been consistent since the Clause was adopted.”  

Five years later, however, in Gonzalez v. Raich (2005) the Supreme Court seemed to retreat from its reinvigoration of the Commerce Clause, and it has not revisited the issue since then.  As the crisis of 1937 shows it is difficult for the Supreme Court to uphold constitutional constraints against federal power when the President, Congress, and popular opinion are all against it.  The Supreme Court is not supposed to be a political branch, but the Court’s perceived legitimacy is vital to the rule of law, and that legitimacy depends on political institutions and consensus.  In other words, in our democratic republic, even the Supreme Court ultimately derives its power from the people.  The other side of the coin is that the better Americans understand the vital importance of a federalist framework in the Constitution, the more strongly they yearn for a return to the Constitution’s founding principles, and the easier it will be for the Supreme Court to reassert its role as guardian of enumerated powers constraints. 

            Disentangling nearly 100 years of Commerce Clause precedent is a tall order, but Gibbons v. Ogdenmight offer a way forward.  Chief Justice Marshall’s opinion in Gibbons has been often quoted for the proposition that the federal government’s power is supreme and complete within its enumerated powers.  This observation was entirely predicated on Marshall’s basic understanding of federalism, in particular the stringent constraints on federal power, which restricted its scope to just a few areas of regulation, and left the “great mass” of legislation to the States.  A more complete reading of Gibbons could help guide the Supreme Court back to the original understanding of the commerce power.  Defining the Commerce Clause should not be just a matter of defining the scope of “interstate commerce” from the point of view of federal power; equally important is the other side, the great mass of regulation that is not interstate commerce and was meant to be left to the States.  The Supreme Court has had trouble devising a precise definition of what interstate commerce is partly because it stopped focusing on what it isn’t—namely those things that were meant to be left to the States. 

As Michael Greve argues, the Court must reclaim its role as guardian of constitutional constraints on federal power.  It can take its cue from the people, and their desire to return to a more decentralized and responsive system.  This desire underpins the promise of a constitutional renaissance now sweeping the Nation. 

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.  Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party.  Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010).  Email: Wes@WesRiddle.com.