(Presented at the National Republican Senatorial Committee Prsidential Roundtable Meeting, Washington, D.C., October 7, 1999)

In 1794, a bill was introduced in the House of Representatives to allocate $15,000 for the assistance of French refugees who had fled an insurrection in Santo Domingo. James Madison, who was pretty familiar with the document that defined the authority of the new federal government, rose to say that he could not "undertake to lay my finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." A century later, President Grover Cleveland had similar trouble with a bill aimed at supplying seeds to drought-stricken Texas farmers. He vetoed it, saying he could "find no warrant for such an appropriation in the Constitution."

Nowadays, the concern expressed by Madison and Cleveland seems quaint, if not puzzling. Indeed, a politician who took a similar stand on an emergency relief bill today probably would be depicted as a mean-spirited obstructionist.

But Madison and Cleveland were not expressing indifference to the suffering of their fellow man. They were expressing their fidelity to a principle at the heart of our system of government: Congress may exercise only those powers explicitly authorized by the Constitution. As Madison wrote in Federalist #45, "the powers delegated by the proposed Constitution to the federal government are few and defined." The language of Article I reflects that intention, referring to the "legislative powers herein granted." The 10th Amendment confirms that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

In the 1819 case McCulloch v. Maryland, Chief Justice John Marshall declared that "the federal government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it...is now universally admitted."

This doctrine of enumerated powers was meant to be the main bulwark against federal tyranny. In the debates that preceded ratification of the Constitution, the Federalists initially resisted the idea of a Bill of Rights, arguing that it was unnecessary because Congress simply would not be granted the power to establish an official religion, censor critics of the government, disarm the populace, and so on. "Why declare that things shall not be done which there is no power to do?" asked Alexander Hamilton. Defenders of the original Constitution warned that a Bill of Rights would be not only superfluous but dangerous, since it might be taken to mean that the powers of Congress extended to everything but the rights specifically listed.

That is more or less the situation we find ourselves in now. Instead of occupying a few clearly identified islands, the federal government commands the sea, which laps up onto the islands representing our rights.

How this happened is a long and complicated story. Today I’d like to just touch on one important element of that story: the transformation of the Commerce Clause into what Supreme Court Justice Clarence Thomas has called "a blank check" for congressional action.

Among the congressional powers listed in Article I, Section 8 is the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The main intent of this provision as it relates to interstate commerce was to guarantee the free movement of goods within the country by preventing the erection of trade barriers. Regulate was understood to mean "make regular," and commerce was understood to mean buying and selling, as opposed to production.

More important, the clause expressly limits Congress’s regulatory power to trade among the states. In the 1824 case Gibbons v. Ogden, the Supreme Court found that the Commerce Clause gave Congress the authority to supersede a steamship monopoly granted by New York state. It reasoned that waterway navigation was an essential part of interstate trade. But the Court made it clear that Congress could not regulate commerce "which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."

In 1870, the Court overturned a federal ban on sales of naphtha and certain other fuels. Although this was the first time a law was invalidated on Commerce Clause grounds, the Court remarked that the clause "has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States." In subsequent cases, the Court found that the Commerce Clause did not authorize antitrust efforts against sugar manufacturers, wage and hour regulations for miners and poultry workers, or a compulsory retirement and pension plan for railroad employees. It explicitly rejected the idea that a business could be regulated simply because it had an indirect impact on interstate commerce.

Beginning in the late 1930s, however, the Court abandoned a strict reading of the Commerce Clause. The reversal came after FDR’s threat to pack the Court with judges who were less skeptical about the constitutionality of New Deal legislation. Ultimately, the Court decided that Congress could regulate any activity that has a "substantial effect" on interstate commerce.

The case that introduced this concept involved an Ohio farmer named Roscoe Filburn who violated the Agricultural Adjustment Act of 1938 by growing 12 more acres of wheat than he had been allotted. The Court observed that violating the quota undermined the law’s aim of restricting the national supply of wheat and thereby keeping prices artificially high. In a sign of just how sweeping the new Commerce Clause analysis could be, the Court went so far as to say that even if Filburn did not sell any of the extra wheat, it would still "suppl[y] a need of the man who grew it which would otherwise be reflected by purchases in the open market."

If growing food for your own consumption has a "substantial effect" on interstate commerce and is therefore subject to congressional regulation, it is hard to see what area of life is beyond federal authority. Indeed, since that case, the Court has found a Commerce Clause rationale just about everywhere it has looked. It has even approved federal regulation of restaurants and hotels, because the former buy supplies from other states and the latter attract out-of-state guests.

The Commerce Clause became so elastic that legislators and lawyers assumed it could be stretched to cover anything. That’s why the Supreme Court’s 1995 decision to overturn the Gun-Free School Zones Act came as such a shock.

"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.