The Supreme Court last week decided a truly landmark case addressed to the structural heart of our government. While the nominal holding of United States vs. Lopez is the unconstitutionality of a statute making possession of a gun within a school zone a federal crime, it is the underlying legal rationale that is of potentially monumental significance. Specifically, Lopez is the first step in nearly 60 years toward the restoration of a constitutional order premised upon a national government of enumerated and, therefore, limited powers.
Perhaps it escaped your notice that the constitutional order was amiss, although quite frankly, it is now common wisdom that the federal government is intruding too greatly in everyday life and family budget. Less well-known or understood is that Congress’ ability to intrude into virtually any topic originated in this century with the New Deal and was hinged uneasily upon an obscure constitutional provision authorizing Congress to regulate interstate commerce.
Health care, education, housing, civil rights, crime, economic redevelopment, land use and the environment-every one of these subjects and far more not only has been touched, but also frequently preempted, by federal law on the theory that each “affects”-however remotely-interstate commerce. Now there are two uncomfortable realities about this theory: first, it’s true at its most general level, and second, the admission of its truth seems to make the federalist structure envisioned by the Constitution an impossibility. Because we are ecologically and economically interdependent, every individual action, from clearing one’s backyard of brush and overgrowth to allowing one’s family merely to consume the wheat grown on one’s own farm, “affects commerce.” But if that be so, every action is potentially, and of late has been in actuality, the subject of national regulation.
It is constitutionally abnormal to rely upon centralized, national authority to handle with stiff uniformity locally diverse, and sometimes, minute questions. Understandably, this practice gained its greatest centripetal momentum in abnormal times. The national economic emergency of the Depression and the international threat of World War II cried out for national solution or response. These were ably met, and as these extraordinary circumstances subsided, it seemed that the healthy federalist balance of the original constitutional design would return. As one Supreme Court justice observed, it was still possible to speak as recently as the 1950s of a “burden of persuasion on those favoring national intervention.” Imperceptibly, but inexorably, the burden shifted, and political administrations of the last 30 years assumed the existence of national power to address even the most local subject. The constitutional order was thus subverted. In the words of Justice Sandra Day O’Connor in a 1980s dissent, “the extraordinary become ordinary.”
But not without consequence. We see that consequence most glaringly in the size of the federal deficit, but until this week, the Supreme Court tended to overlook the more subtle, and more insidious, costs of centralization to the constitutional system. While virtually every piece of federal legislation is intended to have some good purpose-not unlike the law struck down in Lopez keeping guns out of schools-a fixation on finding federal solutions for local problems has meant a disregard for the political sovereignty of the states, an acceptance of “one size fits all” answers for matters better resolved locally or with greater variation, and in the end, a loss of personal freedom.
Lopez is no cure-all for this. No single, closely divided 5-4 opinion could be.
The legal riddle of what precisely falls within the national commerce power has not been solved, although Lopez supplies some useful clues. It is clear, for example, that the original understanding of the commerce power was to create a national economy free of state-imposed trade barriers. Consistent with this, Lopez affirms Congress’ ability to regulate the “channels of interstate commerce,” such as roads and navigable waters, as well as “instrumentalities” within those channels, from trucks to airplanes to the means of telecommunication. Within this category, too, the court made plain that Congress retains authority to keep items out of commerce, including, one can reasonably speculate, “cop-killer” bullets, assault weapons and other tools of the terrorist trade.
Less clear is what matters may be regulated by the national government as having “a substantial relation to interstate commerce.” This is not new language, and it is within the shadow of the national regulatory portfolio.
Over the years, various Supreme Court majorities have tried unsuccessfully to draw distinctions between direct and indirect effects on commerce. In an earlier era, the court proposed a line between manufacturing and commerce, with all production activity argued to be outside federal power. This conception gave way to the economic wage and hour reforms of the 1930s and thereafter. For a short time in the 1970s and early 1980s, the court tried to limit the burgeoning scope of federal power by reference to the 10th Amendment, which reserves unenumerated authority to the states. But somewhat impatiently after less than a decade, the court abandoned the effort to define “traditional state functions,” and unrealistically told members of Congress that it was up to them to be sensitive to federalism. Not surprisingly, Congress found itself unable to exercise much, if any, self-restraint.
There is no new “bright line” in Lopez to separate federal and state power, other than the straightforward reminder that federal power is not without limit. There is also the related admonition that when Congress regulates under its commerce authority in the future, the regulation had better have some genuine connection to “economic activity.” However pernicious the possession of a gun in school is, it is not that. Therefore, it is now up to the state and local governments to address this anti-social behavior, and remedy it in light of their particular local conditions, with school suspension, fine, imprisonment or some other unique course of action of their own devising.
This is, as I say, not mathematically precise. The court admits as much and, given the dynamic nature of constitutional decisionmaking and the modern difficulties we face, it could not be. But precise or not, it does point, as the court suggests, “to a correct decision” denying the unthinkingly deferential expansion of national power.
