Putting the Farmers' Intent Back Into the Commerce Clause; E. Hagen

Under the Constitution as originally writ ten and understood, the invalidation of the statute in Lopez would have received little attention. As James Madison, the principal draftsman of the Constitution, wrote: "The powers delegated by the proposed Constitu tion to the federal government are few and defined. Those which are to remain in the State governments are numerous and indef inite.,,3For the first 150years of the Republic, this admonition had a profound effect. Con gress, for the most part, refrained from creMr. Hagen is a third-year law student at Pepperdine University School of Law and is an editor of the Pepperdine Law Review. He is the co-author of An Endless Series of Hobgoblins: The Science and Politics of Environmental Health Scares (FEE, 1995). ating the kinds of laws that compose today's gargantuan regulatory state. When Congress attempted to flex its regulatory muscle, the Supreme Court would step in and invalidate the regulations, either for regulating activities with too indirect an effect on interstate com merce or for regulating noncommercial ac tivities, such as mining or manufacturing. 4 The Supreme Court abruptly departed from this original understanding of the com merce power in the years following President Franklin D. Roosevelt's infamous "court packing" scheme of 1937.5 Along with the Court's ideological shift began the systematic process of erasing the previous limitations that had restrained Congress's regulatory power.6 As a result, congressional authority under the Commerce Clause emerged as virtually unlimited. In Lopez, the Court, at long last, acknowledged that some limits still exist, but how these limits are defined remains somewhat uncertain.

The Lopez Definition of Commerce Chief Justice Rehnquist, writing for the majority in Lopez, identified three broad categories of activity subject to congressional regulation under the Commerce Clause: (1) "the use of the channels of interstate com merce"; (2) "the instrumentalities of inter state commerce, or persons or things in in terstate commerce, even though the threat 813 814 THE FREEMAN • DECEMBER 1996 may come only from intrastate activities"; and (3) activities that "substantially affect inter state commerce."? The first two categories are fairly straight forward: Congress may regulate commercial channels, such as highways, waterways, and air traffic; it may also regulate and protect instrumentalities within such channels, such as people, machines, and vehicles.8The third category, as the Court readily admitted, is more nebulous. 9Nevertheless, the Court gave some hints as to what is required for a federal statute in this third category to be upheld as a valid exercise of Congress's commerce power.

The Court first noted that a regulated activity's impact on interstate commerce must be substantial and not merely incidenta1.1o The Court· also affirmed that when Congress exercises its commerce authority, the regula tions it promulgates must have some real connection to commercial or economic activ ity.ll Justice Breyer, the principal dissenter, sharply criticized this commercial-noncom mercial distinction· as a return to an untena ble, pre-Depression version of the Commerce Clause.12 Of course, the flaw in Justice Brey er's argument is that he seems to suggest that the Court should ignore jurisprudential errors simply because they have become entrenched. In light of this quandary, it is uncertain whether activities that are not clearly commercial are still subject to regula tion; however, it may be inferred from Lopez that any connection to economic activity must at least be more obvious than the link between interstate commerce and guns in schools.

The Court next examined two fatal flaws in the Gun-Free School Zones Act. First, the statute contained no jurisdictional element to ensure, on a case-by-case basis, that the gun possession in question affected interstate commerce; and second, Congress made no formal findings regarding the effects of gun possession in school zones on interstate com merce.13 The majority ruling did not state that the presence of a jurisdictional nexus is conclusive of a statute's validity, but the absence of any such nexus raises serious questions as to whether the law goes beyond the enumerated power under which it was enacted. With regard to congressional find ings, the Court recognized that while such findings are not dispositive, they may have some relevance in establishing a link to in terstate commerce. 14 Finally, the Court noted that states have historically possessed primary authority for regulating areas such as criminal law, family law, and education. 15 The Court asserted that if no limits were placed on Congress's com merce power, then the federal government would usurp these traditional state functions and thereby undermine the structural guar anteeof freedom provided by federalism. 16 The Court thereby accepted the Framers' understanding that preventing the accumula tion of excessivepower in the federal govern ment reduces the risk of tyranny.

It is unlikely that Lopez goes so far as to prohibit direct federal regulation of tradi tional state functions, especially when the Court rejected such an approach in Garcia v. San Antonio Metropolitan Transit Authority. 17 Nevertheless, if a federal statute were to regulate an activity that has traditionally been the subject of state control, the Court is perhaps now more likely to invalidate the law. This increased likelihood applies especially if the federal regulation disrupts the federal state balance by foreclosing the states from "perform[ing] their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.,,18As Justices Kennedy and O'Connor observed in their concurrence, federalism has a utilitarian function by discouraging centrally designed and controlled social policies that otherwise would lead to bureaucratic nightmares and Kafkaesque regulation.

Assessing Lopez The precedential value of Lopez remains uncertain. Some commentators insist that the decision will have only a trivial impact,19 others suggest that Lopez may have far reaching consequences. 20 Several statutes have been analyzed under Lopez in the eigh teen months since the decision was an nounced. While most courts have upheld a wide variety of federal regulations by construPUTTING THE FRAMERS' INTENT BACK INTO THE COMMERCE CLAUSE 815 ing Lopez narrowly, the courts are not with out dissension. For example, federal district courts are split with regard to the constitutionality of the Child Support Recovery Act,21 which made it a federal offense to willfully withhold an overdue support obligation from a child re siding in .another state. Some courts have invalidated the statute as beyond the scope of the. commerce power and in violation of the principles of federalism. 22 In particular, these courts have observed that Lopez explicitly singled out federal regulation of family-law matters, such as child custody, as an unrea sonable encroachment on state sovereignty.

Other courts have upheld the statute, assert ing that the regulation of child support pay ments has a substantial effect on the national economy.23 Their conclusion is based on the fact that Congress produced an abundance of legislative history regarding such economic effects and that the statute ensures, on a case-by-case basis, a jurisdictional nexus to interstate commercial activity. The cases upholding the Child Support Recovery Act appear to run contrary to the underlying spirit of Lopez, which endeavored to hold Congress to its constitutional limits and .to restore some balance to the power relationship between the federal and state governments. However, as Justice Thomas foreshadowed in his concurrence in Lopez, the analytically boundless nature of the "sub stantial effects" test encourages decisions that are inconsistent with the principles espoused in Lopez,24 so it is perhaps not surprising that courts are confused.

It should be further noted that courts do not necessarily have to invalidate a federal statute to prevent a significant intrusion on the traditional federal-state balance. A Ninth Circuit case2S involving a federal arson stat ute 26 is illustrative in this regard. Like the statute at issue in Lopez, the activity regulated by the arson statute was noncommercial and Congress revealed no connection to interstate commerce through formal findings. Unlike Lopez, however, the arson statute contained a jurisdictional element that required, in each case, a connection to interstate commerce. Rather than invalidate the law, the court merely overturned a conviction on grounds that the jurisdictional requirement was not satisfied. Thus, courts have the option of using narrow statutory construction to remain true to the values of Lopez. Original Intent Revisited The Rehnquist Court could have decided Lopez differently, consistent with the modern trend of deferring to congressional actions.

However, instead of turning the Commerce Clause into a general police power, the Court declared that the commerce power has limits. Contrary to the Court's case law of the past 60 years, this interpretation is much more con sistent with the original purpose of the com merce power, which was primarily a means of eliminating trade barriers among the states. 27 Thus, in the wake of Lopez, Congress must rethink its belief that it has the authority to intervene in every national problema wel come notion in these days of big government. Lopez undoubtedly gives rise to legal un certainty, for one may no longer assume that the Court will routinely accept that Congress acted within its power. Such ambiguity may present an obstacle to lawmakers but, as Chief Justice Rehnquist noted, any advantage de rived from eliminating this uncertainty would be at the expense of the Constitution's deli cate system of enumerated powers. D 1. 115 S. Ct. 1624 (1995).2. 18 U.S.c. § 922(q) (1988 ed., Supp. V).

3. James Madison,The Federalist No. 45 (ClintonRossiter,ed., 1961), pp. 292-93. 4. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-04(1936) (invalidatingthe BituminousCoal ConservationAct of1935 in part because the act regulatedproductionrather thantrade);United States v. Butler, 297 U.S. 1, 68 (1936) (invalidatingthe AgriculturalAdjustmentAct becauseit invadedthe reservedpowers of the states);ALA. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935) (strikingdown a "Live PoultryCode" authorizedby the National IndustrialRecoveryAct of1933 because the activity being regulated affected interstatecommerceonly "indirectly").5. William E. Leuchtenburg,"The Origins of Franklin D. Roosevelt's'CourtPacking'Plan,"SupremeCourtReview(1966), p.347.6. The watersheddecisionwas NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), wherein the Court upheld the NationalLabor RelationsAct.

7. United States v. Lopez, 115 S. Ct. 1624, 1629 (1995) (citationsomitted). 8. [d. at 1629-30. 9. Id. at 1630. Concedingthat the majorityrulinggives riseto legaluncertainty,ChiefJusticeRehnquistnotedthateversince Marbury v. Madison determinedthat it was the judiciary'sduty to 816 THE FREEMAN • DECEMBER 1996 "say what the law is," such uncertainty has been inevitable. /d. at 1633 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 10. Id. at 1630. The Court stated that Congress may not use "a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities." Id. (citing Maryland v. Wirtz, 392 U.S. 183, 196 n. 27 [1968]). 11. Id. at 1630-31. 12. /d. at 1663 (Breyer, J., dissenting). 13. /d. at 1631-32. 14. /d. 15. Id. at 1632-33. 16. /d. 17. 460 U.S. 528, 546-47 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976). 18. Lopez, 115 S. Ct. at 1641 (Kennedy, J., concurring).

19. Lino A. Graglia, "Case Studies," National Review, June 26, 1995, p. 32. 20. David G. Savage, "High Court to Rule on Law Barring Guns Near Schools," Los Angeles Times, April 19, 1994, p. A17; Arthur Schlesinger, Jr., "In Defense of Government," Wall Street Journal, June 7, 1995, p. 14. 21. 18 U.S.c. § 228 (1995). 22. See United States v. Mussari, 894 F. Supp. 1360, 1368 (D. Ariz. 1995); United States v. Schroeder, 894 F. Supp. 360, 368-69 (D. Ariz. 1995); United States v. Bailey, 902 F. Supp. 727, 730 (W.D. Tex. 1995). 23. See United States v. Hampshire, 892 F. Supp. 1327, 1330 (D. Kan. 1995); United States v. Sage, 906 F. Supp. 84, 88-89 (D. Conn. 1995). 24. United States v. Lopez, 115 S. Ct. 1624, 1650 (1995) (Thomas, J., concurring). 25. United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995). In Pappadopoulos, the government argued that federal jurisdiction was conferred upon an arson prosecution because the private residence that was destroyed received natural gas from out-of-state sources. Id. at 525. The court held that this was an insufficient connection to interstate commerce. Id.

at 527. 26. 18 U.S.c. § 844(i) (1995). 27. Roger Pilon, "Freedom, Responsibility, and the Consti tution: On Recovering Our Founding Principles," Notre Dame Law Review, 68 (1993), p. 534. Now available in a Leather Edition! The Monumental Masterwork of "THE GRAND OLD MAN OF ECONOMICS"* Considered by many to be the counterweight of Marx's Das Kapital, HUMAN ACTION is the magnum opus of a genius. "Mises is thefirst to work out economicson afirm foundationon the principleof individualaction.... This is the economicbiblefor the civilizedman." -Murray N.Rothbard LUDWIG VON MISES is now universally acknowledged as one of the fountain heads of the worldwide movement toward individual liberty. Here is the classic defense of capitalism, whose impact and influence continue to grow. *Library Journal Elegant dark-blue leather edition, featuring a gold-stamped design on cover and spine, edge-gilded, with boundin gold bookmark.

928 pages, ISBN 1-57246-021-0 $99.95 Published by The Foundation for Economic Education, Inc., (800) 452-3518 The Foundation for Economic Education Irvington-on-Hudson, New York 10533 Tel. (914) 591-7230 Fax (914) 591-8910 E-mail: freeman@westnet.com December 1996 Two Yardsticks of Morality T he mystery of life is not a problem to be solved. We were born some time ago, but know not why. We shall die some time, but know not when, where, and why. All we may ask: "What is it every man is seeking in his life? What does any man want?" He is seeking to be secure in his life, to be left alone so that he may become what he would like to become. To be free and independent, to be happy, to do what he pleases without restraint and coercion, that's probably the most important single force in the world today. Yet this force faces the reality of com plete dependence of every individual on the cooperation of other individuals. Our food, clothing, shelter, transportation, and education are provided by other individu als working together in meticulous divi sion of labor. We depend on our fellow men for our very survival. How free and independent can we be with neighbors all around us and coworkers with us for most of the day?

This question of the limits of freedom has occupied theologians and philosophers throughout the ages. Some tell us that modern society cannot tolerate much indi vidual freedom because of a limitation of space and resources; others demand a wide margin of freedom because of the complexities and intricacies of man's coop eration and division of labor. One answer which is rather persuasive is based on the very definition of freedom itself. Ifevery man seeks to be secure,to be happy,to do what he pleaseswithout restraintand coercion,and everyman is to have the same measureoffree dom, my own must be limitedby everyone else'sfreedomas everyoneelse'sis limitedby mine. I must always be mindful of others. I must not diminish anyone's freedom, I must not inflict harm on other people. Most of us are considerate of the rights of our fellowmen. In our personal rela tions we try to be careful, thoughtful, cour teous, and judicious. We may assist each other in many ways, and be Good Samaritans, offering aid to people in need; yet in our political lives we may act like thieves and highwaymen. We readily seize other people's income and property with out remorse. Indeed, there seem to be two modes of behavior, two yardsticks of morality: one for our personal relations and one for the body politic.

Politics is strife of interests masquerad ing as contest of principles. To be a lawyer you must study law; to be a physician you must study medicine; to be a carpenter you must learn your trade; but to be a politician you need only to know your own interests and those of your electorate.

As voters we ourselves live by a similar yardstick of morality in our political choic es and decisions. We seizeas many benefits and privilegesas we possiblycan - alwaysat someoneelse'sexpense.And we impose as many restraints and restrictions on our fel low citizens as we possibly can. When death comes to our neighbor, we may weep with the widow and her chil dren. We honor the dead and comfort the living. We deem it our special duty that, if they need our help, we give it to the utmost of our ability and our power. But as members of the body politic we dis patch our estate sleuths and collectors to seize most of their belongings. For many years we expropriated as much as 77 per cent of their possessions through the Federal Internal Revenue Service; at the present we seize only 55 percent. We grab various percentages through our state rev enue departments. As members of a political party, profes sional association, or a labor union, we seek our own good at the whole world's expense. We act like hungry tigers in our own cause, preying on widows and orphans, women and children, and various minorities by majority vote. We plunge into politics to make our fortune. We join an association to fight for license and privi lege, and sign up with a labor union in order to earn more and work less. In a labor dispute we may man a picket line and use brute force against fellow workers, employers, and their customers.

The difference between personal and political lives is clearly visible in the behavior of a teamster who, as a faithful member of his congregation, attends mass on Sunday and, as a member of local 1678, blocks traffic on Monday, throws bricks at passing trucks, and slashes the tires of scab automobiles. Similarly, the organized steelworker, longshoreman, bus driver, or coal miner may attend church on Sunday but waylay independent workers on Monday. The hospital worker may care for the sick throughout most of the year but harm them at bargaining time. In our personal lives we love our chil dren. They are a mother's pride and a father's joy. We instruct them in virtue and labor and bind them to us through care and protection. Yet, as members of the body politic, we burden them with our debt, trillions of dollars, which we force them to payor be dishonored in bankrupt cy. We enjoy the productivity of the mag nificent apparatus of production which our forebears left to us, yet it is insufficient for our enjoyment. Our deficits eat into the substance of the apparatus so that our chil dren must work with less and subsist on less. We inflate and depreciate our curren cy, which erodes the purchasing power of all claims to money, including the savings of our children. As parents we may create a legacy for our children; as members of Medicare we drain it and fritter it away.

Indeed, there are two modes of behav ior, two yardsticks of morality. In our per sonallives we try to be charitable, which is to will and do what is just and right in every action. We may lend a hand to a stranger, stand by an orphan or widow, and give bread to the hungry. As members of the body politic we may act like a gang of highwaymen lurking in the highway for the purpose of robbing passers-by. Hans F. Sennholz $9.95 I $2.95 :~ ~ $11.95 • $11.95 lt $9.951 ~ $5.95 $12.95 $14.95 $14.95 (hardcover) If you call or fax your order today, we will have the books to you-free of postage and handling charges-in plenty of time for Christmas . Telephone: (800) 452-3518 • Fax: (914) 591-8910 Sale ends January 31, 1997 Regular Special 1. Leonard E. Read Anything That's Peaceful $12.95 $9.95 2. Henry Hazlitt The FoundationsofMorality $16.95 $12.95 3. Clarence B. Carson The AmericanTradition $12.95 $9.95 4. Tibor Machan The Virtueof Liberty $14.95 $11.95 5. F.A. Harper Liberty:A Path to Its Recovery $10.95 $7.95 6. Burton W. Folsom, Jr., ed. The Spirit ofFreedom $14.95 $11.95 -_~taif!~_~~~'-Wf : Christmas Suggestions 8 • , 7. Frederic Bastiat The Law w: 8. Henry Grady Weaver ~ The MainspringofHuman Progress ,~ 9. Edmund A. Opitz I Religion:Foundationof the Free Society • 10. Mark Skousen Economicsof a Pure Gold Standard J I FEE Specials ~ l~ Lighting Freedom'sPath-A documentary of FEE and its great mission.

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Published by The Foundation for Economic Education, Inc. 30 South Broadway, Irvington-on-Hudson, NY 10533 ISBN 1-57246-056-3 • 176 pages • paperback $14.95 Availablein bookstoresnationally,or call (800) 452-3518 THEFREEMAN IDEAS ON LIBERTY Libertyand Privacy: Connections by Joseph S. Fulda I f property is liberty's other half, privacy is its guardian. The right to privacyis essential to the preservation of freedom for the sim plest of reasons. If no one knows what I do, when I do it, and with whom I do it, no one can possibly interfere with it. Intuitively, we understand this, as witness our drawing the curtains and pulling the window shades down when prowlers are about. The threat to free dom comes from both the criminal and the state, from any and all ways and means in which others forcibly overcome our will. Just as we do not want burglars casing our homes, we should fear the government's intimate knowledge of the many details of our daily lives.