Everything you need to know about the Commerce Clause

Senator Pat Leahy went right to it in his opening statement Monday at the confirmation hearings for Supreme Court nominee John Roberts. We will want to know the nominee's views, the senator said, on the commerce clause.

Why does it matter? Because the commerce clause has been used by the federal government to give itself the power to do all kinds of things that are not authorized by the text of the U.S. Constitution.

Or, as Senator Ted Kennedy put it on Monday, the issue is "whether the Supreme Court will preserve the gains of the past."

Here's the key to understanding the U.S. Constitution: the states came first. When the representatives of the states wrote and ratified the Constitution, they were adamant that it not give the national government one bit more power than was absolutely necessary. The idea was to avoid the chaotic disagreements they were experiencing under their first try at a union, the very unsatisfactory Articles of Confederation.

"The powers delegated by the proposed Constitution to the federal government are few and defined," James Madison explained, "Those which are to remain in the State governments are numerous and indefinite."

Bet you didn't know that. Today we live under a federal government that uses phrases like "give the states more power," as if it was theirs to give.

After the Civil War, the Constitution was amended to prohibit the states from denying any person due process of law or the equal protection of the laws. But the men who wrote and ratified that amendment, the Fourteenth, did not intend by those words to ban racial discrimination.

During the debates over the Fourteenth Amendment and the concurrent Civil Rights Bill of 1866, the Congress cut this language from the bill: "There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery...."

Once again, don't miss this: They cut that language from the bill. The lawmakers were worried that the courts might use those words to strike down racial discrimination. And these men were from the Northern states (the Southern states were not invited to participate). They made sure the states retained the authority to ban interracial marriage, exclude blacks from jury service, and operate segregated schools.

That's what Constitution still says. It has never been amended to ban racial discrimination.

So when the Congress passed civil rights legislation in the 1960s that banned the states from discriminating on the basis of race, they had no constitutional authority to do so.

This is where the commerce clause enters the picture: Congress cited the commerce clause as the basis for its power to ban racial discrimination at hotels and lunch counters and in all other businesses.

If the Constitution were amended to ban racial (and gender) discrimination, as it should have been and still ought to be, discriminatory state laws would be unconstitutional without a stretched-out interpretation of the commerce clause.

Once the interpretation of the commerce clause was expanded, Congress began to use it as a license to legislate on all kinds of things that the Constitution does not permit the national government to govern.

The late Chief Justice William Rehnquist incurred the wrath of Congress when he led the court to strike down the Violence Against Women Act and another law banning guns near schools. Congress had claimed the authority to legislate in these areas under the commerce clause. No, said Chief Justice Rehnquist, those laws are unrelated to interstate commerce and they tread on the constitutional powers that are reserved to the states.

Senator Arlen Specter is still steaming over that. He thinks the commerce clause is the source of Congress' power to legislate.

Sure, now. But that's not the deal we signed.


Copyright 2005

Read more about it, with complete source notes, in the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing."