7/29/2019 TNA-11!16!19950807 Watkins ReiningInCommerceAbuse

1/1

IN LIGHT OF THE PAST

Reining in Commerce AbuseO ne of the greatest weaknesses ofthe Articles of Confederationwas that the states were lef t totheir own devices concerning trade .This led to meddlesome trade restrictions that hampered economic growth.The power of Congress to "regulatecommerce with foreign nations, andamong the several States, and with theIndian tribe s" was seen as a most necessary part of the Constitution of 1787. InThe Federalist, #11 , Hamilton arguedthat the Commerce Clause would, amongother thing s, enrich the states through anunhindered "interchange of their respective productions," and provide the general government with revenue fromduties and excises, thus avoiding theburdens of direct taxation.During the ratification debates therewas concern that the federal govern-ment would use its power over inter statecommerce to create monopolies. Also,the Southern states were concerned thatthe Northern states would enact oppressive tariffs to benefit manufacturers atthe expense of agriculture.Put to the TestFollowing ratification of the Constitution, federal control over interstateand foreign commerce greatly enrichedthe states as commercial barriers weretorn down. Nevertheless, there was always the danger of a broad interpretationof the clau se. In a landmark SupremeCourt dec ision in 1824, Chief JusticeJohn Marshall held that Congress' authority to regulate commerce was plenary . Such an unlimited power in thehands of government could only turninto a penal power and threaten the libertie s of the people.Fortunately, subsequent Courts defined commerce in such a manner as toforestall an enormous expansion of thefederal government into the peculiar local affairs of the people of the states.When the federal government sought toapply the vague Sherman Act, whichprohibited "every combination . . . in restraint of trade," to the American SugarRefining Company, the High Court became skeptical. The Court held in UnitedStates v. EiC. Knight Co. (1895) that by42

simply purchasing the E.C . KnightCompany, the American Sugar RefiningCompany was not restraining trade orcommerce even though it controlledover 90 percent of the nation 's sugar refining capacity. The Court realized that"commerce succeeds to manufactureand is not a part of it." A general government with the power to control themanufacture of article "x" was beyondthe wildest dreams of the Framers.

Bu t the strict view of commerceenunciated in Knight was abandoned ina progression of cases. Nonetheless, itwas not until 1942 that the Court finallylet the genie out of the bottle. UnderFOR 's second Agricultural AdjustmentAct (AAA), Fi lburn, an Ohio farmer,was fined by the government for planting 23 acres of wheat instead of only IIas instructed by Big Brothe r. Eventhough Filburn planned to use the extra12 acres for consumption on his ownfarm, the government sought to penal ize him .In Wickard v. Filburn the SupremeCourt uphe ld the government's regulation of Filburn 's heinous crime - selfsufficiency. The Court reasoned thathad Filburn not grown his own wheat hewould have bought wheat on the marketand that purchase could have affectedthe price of wheat that was transportedin interstate commerce. With this expansive reading of the Commerce Clause, thefederal government was given the greenlight to further enlarge its authority.

The Commerce Clause became theanswer to all of the nat ion's problems .Under the Civi l Rights Act of 1964,Congress used the Commerce Clause toforce priva te bus inesses to open theirdoors to everyone, creating, in effect, arequirement to serve. The distinctionsbetween public utilities such as the gas ,water, or telephone company, and private enterprises were cast aside . Smallmom and pop stores lost control of theiraffairs.In Heart of Atlanta Motel v. UnitedStates, the Court upheld the Civil RightsAct of 1964 , declaring that "the powerof Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including

local activities .. . which might havesubstantial and harmful effect upon thacommerce." Federal power over interstate commerce had thus been transformed from a device to enhance tradamong the several states into a federapolice power that makes a mockery othe idea of limited and enumerated federal powers.Return to ReasonHowever, reason appears to be takinthe field once again . In April the Supreme Court struck down the Gun-FreSchool Zones Act of 1990. Under thiact Congress used the Commerce Clausto make it a federal offense "for any individ ual knowingly to possess a firearmat a place that the individual knows, ohas reasonable cause to believe, isschool zone." Chief Justice Rehnquisrejected the arguments of the ClintoAdm ini stration that guns in or neaschools are deleterious to the learninenvironment, make children less productive once they get into the workforceand thus affect interstate commerce. "we were to accept the Government's arguments," wrote Rehnquist in UniteStates v. Lope z, "we are hard-presseto posit any activity by an individuathat Congress is without the power tregulate."Though the decision does not brinthe interpretat ion of the CommercClause back to the sanity of original intentions, it is a step in the right direction. Lopez does much to begin threstoration of our battered federal system by reining in one of the mosabused clauses of the Constitution. Ifact , it is the first time since 1936 thathe Court has overturned a federal lawon the grounds that it exceeded the commerce authority.

The Commerce Clause serves as aexample of how a clearly defined constitutional provision can be twisted anturned by designing poli ticians intodevice to oppress the people. Thougtimes may change, the original intentioof the Framers - limited governmen- remains the firmest foundation owhich to interpret the Constitution. - WILLIAM J . W ATKINS JR

THE NEW AMERICAN / AUGUST 7, 199