The Commerce Clause

Critics of the federal government like to ascribe its ballooning power in criminal cases to the fear-driven actions of recent Republican administrations. A longer view, however, reveals that the government’s actions that breed discontent in 2008 were made possible by the overreaching of a Democratic administration more than seventy years ago. Like today, we had a president in 1937 who was eager to expand the power of the federal government — then in the name of the New Deal, now for the sake of the Global War on Terror.

Luckily for FDR, he won the 1936 election by a landslide and was able to threaten to pack the Supreme Court, which had been overturning the New Deal; following this threat the Court turned around and broadened the federal government’s Commerce Clause power with the National Labor Relations Board v. Jones & Laughlin Steel Corporation decision in 1937.

It is beyond cavil that the power of the federal government took a great leap forward with Jones & Laughlin Steel. Perhaps you think that this was a bad thing. You must nevertheless admire the Hamiltonian brilliance of a court that, at a stroke, converted a weak federal system to an almost all-powerful centralized government that held sway without serious challenge for almost sixty years (until U.S. v. Lopez, which held in 1995 that it’s not necessarily the federal government’s business when I carry my six-shooter in a school zone).

Government’s omnipresence in our lives can mostly be blamed on the Commerce Clause jurisprudence from 1937 on — if FDR hadn’t successfully seized jurisdiction over everything touching interstate commerce, we would have no war on drugs; we would also likely have had no Civil Rights Act. In other words, without Roosevelt’s threat to pack the court, federal government would be a shadow of its current self.

Apparently the Commerce Clause cannot be read too broadly to satisfy men like George W. Bush, who has presided over the greatest growth in federal government ever. Nevertheless, the Government’s successful Commerce Clause power grab is not entirely the fault of the neocons or even of the Republicans; it can be blamed, instead, on government’s natural imperative to attain more power.


0 responses to “The Commerce Clause”

  1. I’m glad you brought this up because I’ve been meaning to write about it myself. One reason I went into criminal defense was my reaction to Justice Breyer’s speech at my law school justifying the federal sentencing guidelines.

    He seemed to be saying “give them some time… we’ll work the bugs out” which wasn’t easy to do if you were one of the families caught in their web and doing time under them. Ironically it was a conservative former prosecutor turned great defense attorney who rebutted Breyer’s arguments so well that inspired a few of us to go into criminal defense.

    I rail against the neocons a lot because of the excesses of the Bush administration but also realize that the expansion of federal power in the war on drugs, on crime and now on terrorism, has been a bipartisan effort.

  2. “beyond cavil” Check
    “breed discontent” Check
    “Hamiltonian brilliance” Check
    “six-shooter” Check
    “the commerce clause cannot be read too broadly to satisfy me…” Check (very imaginative)

    “callipygian” Ahem, do my eyes deceive me?

    A wonderful discussion of the commerce clause, and yet, there’s something missing.

  3. It is an interesting phenomena how government just naturally wants to get bigger and expand its power.

  4. David, Ron, I think it’s the nature of government. Living things of all sorts follow (feel?) an imperative to increase their power: animals eat and mate; plants grow toward the sun; governments take away human freedom.

    Aha! Gotcha, SHG. Where to put “callipygian”? That’s the puzzle that I had to solve, and now you get to solve it too!

  5. AHA! Brilliant. The first letter of each sentence!

    Well done.

    Main Entry: cal·li·pyg·ian
    Pronunciation: \?ka-l?-?pi-j(?-)?n\
    Function: adjective
    Etymology: Greek kallipygos, from kalli- + pyg? buttocks
    Date: circa 1800

    Definition: having a shapely buttocks

  6. Hello Mark,

    Putting aside the Straussian hidden meanings, I completely agree with you. The Federal government has abused the Commerce Clause since 1937 (if not sooner) and we have been paying the price ever since.

    Interstate commerce means interstate commerce, not intrastate activities that might conceivably have an effect on interstate commerce.

    I’ve learned to stop being shocked at how many Americans feel to realize that – or to even care about interstate commerce. It’s become just a mantra, an “abracadabra” that the Federal government recites before grabbing off yet more power. And I doubt that the Lopez decision has really changed anything in that regard.


    Jeff Deutsch

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