Pushing the Limits

Jacob Sullum | October 7, 1999

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"We start with first principles," Chief Justice William Rehnquist said at the beginning of his majority opinion in United States v. Lopez. "The Constitution creates a Federal Government of enumerated powers." Consequently, he said, the Commerce Clause cannot be read as an open-ended license. There has to be some substance to the notion of "substantial effects."

Rehnquist noted that the Gun-Free School Zones Act, which banned gun possession within 1,000 feet of a school, "has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms." He rejected the government’s argument that Congress was acting within its authority under the Commerce Clause because gun possession in school zones contributes to crime, which affects the national economy, and undermines education, thereby reducing productivity. "Under the theories that the Government presents," he said, "it is difficult to perceive any limitation on federal power."

In his concurring opinion, Justice Clarence Thomas went further, arguing that the Court needs to rethink its approach to the Commerce Clause, which "has drifted far from the original understanding." He argued that the "substantial effects" test, "if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life....Such a formulation of federal power is no test at all. It is a blank check."

Since Lopez was handed down, defenders of limited government have been debating what sort of impact it will ultimately have. On the one hand, Congress immediately passed a new version of the Gun-Free School Zones Act, throwing in some boilerplate about the impact of gun violence on interstate commerce. If that’s all it takes to pass muster with the Court, Thomas is right that the "substantial effects" test is no test at all. On the other hand, the Court has shown concern for maintaining the separation of powers between the states and the federal government in several recent cases, and the challenge to the Violence Against Women Act that it has agreed to hear this term will be another opportunity to define the limits of the Commerce Clause.

Of course, members of Congress don’t have to depend on the Supreme Court. They could show a little restraint on their own. That may seem naive, since Congress lacks constitutional authority for so many of the projects it has become accustomed to pursuing, from art subsidies to the war on drugs. Even Justice Thomas was reluctant to recommend an immediate return to the original understanding of congressional authority, given how much longstanding federal activity such a dramatic shift would invalidate. But surely anyone who takes an oath to uphold the Constitution cannot in good conscience support a bill it does not authorize. Surely, like Madison, he must "undertake to lay [his] finger on that article of the Constitution" that gives him permission to vote yes.