Jury-rigging Federal Commerce Power

How legalistic baling wire, duct tape and flour paste have been used to cobble together
a Rube Goldberg apparatus of legal precedent


Gary Marbut © 2010

Jury-rigging precedent

In the recent, landmark free speech case Citizens United v. F.E.C., U.S. Supreme Court Chief Justice John Roberts elaborated about when it is acceptable for the Court to overturn precedent: “... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” (Emphasis added)

How the federal government was formed

The federal government was created by the states.  The states are the principals and masters, and the federal government, the United States of America, was created by the states to be a servant and agent of the states.  When the several states created the U.S., that creation was accomplished by a very specific, written charter, the U.S. Constitution.

The Constitution not only authorized a specifically limited role and set of powers for the new federal government, it also clearly staked out topical areas where the federal government is prohibited to tread.  One of the limited areas of power given to the federal government is the "Commerce Clause," found at Article I, Section 8 of the Constitution.  That clause says:  "The Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

Those who engendered, empowered and chartered the new federal government (the several states) also carved out and described a significant amount of topical turf the new federal servant and agent is not allowed to invade.  These specific restrictions are spelled out in the Bill of Rights, the first ten amendments to the Constitution.  Of those, most important to this discussion are the Ninth and Tenth Amendments, which say:

Ninth Amendment. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Tenth Amendment. 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.

The colonial problem to be addressed

The thirteen original colonies experienced some problems operating under the Articles of Confederation.  The Articles set up a weak and loose coordinating body in an attempt to work out ways the colonies could cooperate.  During this period, some colonies would prey on the goods produced by other colonies, either to raise revenue or to give market advantage to producers of the same or similar goods produced by the predatory colony.

Two hypothetical examples may help explain this.  Suppose that South Carolina were shipping tobacco to New York market.  Suppose on passage through Virginia, Virginia slapped a transit tax on that product, a tax equal to 100% of the market price of tobacco, done to give Virginia a more favorable position in the New York market for Virginia tobacco.  That would make Carolina tobacco unable to compete with Virginia tobacco, pricewise.

Suppose New York wanted to protect a fledgling industry in the manufacture of firearms.  It might have imposed a stiff tax or other import restrictions on rifles made in Pennsylvania, or even in all other colonies.

In founding era discussion about the need for the new federal government to be able to "regulate commerce" "among the several states," most of the conversation seems to have centered on maritime shipping trade, much of it about colonies' commerce with Europe.

So, the problem the founders sought to solve with the commerce clause was inequities in commerce between various colonies, a problem that could not be solved with the powers granted under the Articles of Confederation.

Parsing the words - what did they mean, then?

What do the effective words mean, "regulate" "commerce" "among the several states"?  More importantly, what did these words mean to those who gave these words authority by adopting them, the ratifying conventions of the several states?  It matters not what these words might have meant in Portugal at the time, or what they might mean in India today.  And, although it matters what these words meant to the average person at the time, or even to the drafters of the Constitution, it matters most what these critical words meant to those who adopted them, the ratifying conventions.


From examination of the evidence of those times, it is pretty clear what "regulate" did not mean.  It did not mean "to prohibit."  Those who approved "regulate" knew well the word "prohibit."  One may presume that if they had meant "to prohibit," they would have said "prohibit."  Looking at other uses of "regulate" in the Constitution, and ratification discussions, it is clear that this critical word was used in the context of "to make regular," to allow the new Congress to make the rules and practices for commerce the same across the colonies so that none could play the predatory game that this language and power sought to interdict.

The intent was to encourage or enhance commerce among the several states by having power to set rules to make commerce regular.  It is certain that if the language proposed by the constitutional drafters had been to give Congress the power to "prohibit commerce … among the several states," the discussions in the ratifying conventions about this clause would have been quite different.  The colonies wished to encourage commerce, not limit or suppress it.  The colonies were anxious for prosperity.  How would prohibiting commerce have served that end?

It seems apparent that the use of "regulate" in the Commerce Clause was intended and accepted to mean to "make regular" or to "facilitate by providing uniform rules," but not to "prohibit."


There is a great deal of debate about how deep into the microeconomic details of economic activity the word "commerce" was intended to allow.  Among those who ratified the Commerce Clause, "commerce" clearly included national trade with foreign nations and maritime trade among the colonies.  Gross trade seems to have been the intended target, but not just any gainful activity, or anything that might have had some tenuous connection with commerce.  At the time, "commerce" was not thought to include agriculture, mining, manufacture, or any other sort of production of goods.

Suppose, for example, it had been proposed before ratification of the Constitution, that the commerce clause would be interpreted to empower Congress to choose between oil lamps and candles as proper lighting, and to impose that choice upon all individuals living in the colonies, from the city of Philadelphia to backwoods residents of North Carolina.

Or suppose some prophetic person was to have asserted the commerce clause to create power for Congress to select between cotton wicks for candles and silk wicks.  That person would have been ridiculed beyond imagination.  Yet Congress now asserts the power to choose fluorescent lights over incandescent lights, and the power to enforce that choice on all individuals, all under the presumed power to regulate "commerce."

Very clearly, those adopting the Constitution did not see "commerce" as including agriculture, mining, retail merchandising, barter or "artificing" (producing goods).  In the minds of the ratifiers, "commerce" only applied to gross trade.

Among the several states

Before the Declaration of Independence, the various geopolitical parts of America were thought of as "colonies," colonies of England.  Upon declaring their independence from England, these colonies became something else.  They called themselves states.  As "states," they thought of themselves as sovereign geopolitical entities within their geographical boundaries.  By sovereign, they understood and intended that no outside entity, especially England, had any authority to command the conduct or affairs of these now-separate states.  They claimed the usual powers of states of that era, such as to negotiate with other sovereign entities, to make treaties, to defend their borders and territories, etc.

"Among" had the meaning at the time of the Constitution's ratification that it does now, which does not include "within."  If we were to say, "Among the children wishing to purchase ice cream they had $5," we do not take from that that the money is inside of or within each child.  Clearly, "among" has meaning similar to "between," or in the context of the Commerce Clause "from one to another."  Understanding the nature of the problem the Founders wished to address with the Commerce Clause power corroborates this view.

There is yet another route to the same conclusion.  The full Commerce Clause says:  "The Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"  Why would the Founders have listed these three distinct areas of commerce if their intent had been to give Congress the power to regulate all commerce?  They could simply have said "The Congress shall have power … To regulate commerce;" which would have semantically included commerce "within" states.  Or, they could have said, "The Congress shall have power … To regulate commerce with foreign nations, and among and within the several states, and with the Indian tribes;"  They did not.

Said differently, there would have been no point to saying Congress could regulate commerce "with foreign nations," "among the states" and "with Indian tribes" if the purpose were to allow Congress to regulate all commerce.  It is simply not an option to declare that the Founders were incompetent wordsmiths and were incapable of stringing together the right words to express what they really meant, or to say that they used extra words that had no meaning or consequence.

How we got where we are now

Although it isn't specifically authorized in the Constitution, the U.S. Supreme Court figured out early on that it had the authority to decide which laws Congress passes are and are not within the powers granted Congress in the Constitution - which laws are "constitutional" and which are not.  This principle was established in Marbury v. Madison in 1803.  And, this power seems to be consistent with the intent of the Founders to have the different branches of government check each other.

Up until the 1930s, the Supreme Court used this power to rein in congressional excesses in Commerce Clause assertion.  The last two cases in which the Court used its power to declare Congress-passed laws to be beyond the power of Congress to "regulate commerce … among the several states" were the Carter Coal and Schechter Poultry cases.

However, the New Deal was in full swing.  In cooperation with President Franklin Roosevelt, Congress was busy passing all sorts of laws intended to bail the U.S. out of the "Great Depression".  Many of these laws had the effect of massive shifts of effective power from people and states to the federal government.  When the Supreme Court invalidated federal authority in Carter Coal and Schechter Poultry cases, a very frustrated President Roosevelt threatened to pack the Court, to expand the number of justices from nine to 15, and to ram through Court appointments of new justices sympathetic to his New Deal programs intended to vest more power in the federal government.

This threat was very contentious nationally, and some say cost Roosevelt a lot of never-regained political capital.  Nevertheless, it worked.  The (then) recent decisions restraining federal power had been narrow, 5-4 votes on the Court.  Under the threat of Court-packing, Justice Owen Roberts switched sides on review of New Deal programs.

The next major Commerce Clause case to come before the Supreme Court was Wickard v. Filburn, in 1942.  Wickard was the Secretary of Agriculture and Roscoe Filburn was a farmer.  In order to attempt to bolster wheat prices, Congress had authorized the Secretary of Agriculture (
Agricultural Adjustment Act of 1938) to implement wheat-growing quotas, for states, for counties within states and for farms within counties.  Filburn grew the allowed acreage of wheat, plus some more to feed his family and livestock.  Officials of the Department of Agriculture fined Filburn for planting, growing and harvesting the extra wheat.  Filburn sued, claiming that Congress lacked authority under its power to "regulate commerce … among the several states" to tell him he couldn't grow wheat for strictly on-farm use, to feed his family and livestock.  Filburn's claim that the extra wheat never left his farm was not contested.

In Wickard v. Filburn, Justice Roberts caved to Roosevelt's threat of court-packing, switched sides, and voted with a new 5-4 majority to affirm congressional Commerce Clause power.  In order to arrive at that conclusion, the new Supreme Court majority had to to gin up some very inventive rationale about how growing and using on-farm wheat was subject to the authority of Congress to "regulate commerce … among the several states".  The majority decision "reasoned" that if Filburn had not fed his extra wheat to his family and livestock, it might have traveled across a state line, and that if every farmer did what Filburn had done then the practice would have enough aggregate effect that it could affect interstate commerce.

To get there, the Court had to redefine "regulate" to mean "prohibit."  It had to redefine "commerce" to include agriculture and production of goods.  And, it had to redefine "among" to mean "within."  Although the Court did not also redefine the word "states," it did effectively redefine the relationship between the national government and the states.

The bare, distilled facts of the Wickard decision are these:  By redefining the words of the Constitution to mean something different and new, the Wickard Court handed Congress and the federal government the full power to prohibit every U.S. citizen from growing food on his own property to feed his family.  It's actually worse than that.  Using the rationale' of Wickard, Washington may now regulate, mandate or prohibit nearly any individual conduct or endeavor, even if it happens entirely on your own property, all under the subterfuge of regulating "commerce … among the several states."  How Orwellian this is!

This was a twisted, dark linguistic stunt never equaled in American jurisprudence, all done to hand the federal government carte blanche power to effectively regulate, mandate or prohibit anything at all.

There have been some thin but ineffective attempts since Wickard to limit federal Commerce Clause power, including U.S. v. Lopez and U.S.  v. Morrison.  However, any benefit from those attempts was lost in Gonzales v. Raich in 2005.

California had passed a law (the Compassionate Use Act - done by popular initiative in 1996) allowing the production and use of marijuana for medicinal purposes.  Notwithstanding this authorizing state law, federal officials continued arresting and prosecuting California medicinal marijuana providers and users, asserting violation of federal "narcotics" laws, laws based on the power of Congress to "regulate commerce … among the several states".

Angel Raich was a California medical marijuana user who sued the U.S. Attorney General, Alberto Gonzales, asserting that criminalizing state-grown and state-retained medical marijuana was beyond Congress's Commerce Clause power.  When the case got to the Supreme Court, the Court affirmed the power of Congress.  To do so, yet another set of mental gymnastics was required.  In Raich, the Court "reasoned" that even though there is no legal interstate commerce or marketplace in marijuana, since medicinal marijuana is indistinguishable from non-medicinal marijuana, the use of medicinal marijuana could have some possible affect on the illegal marketplace (it could displace marijuana illegally transported across the state line), and therefore medicinal marijuana was subject to the power of Congress to "regulate commerce … among the several states".


As the reader can see, what power Congress may assert under the Commerce Clause has been changed dramatically since the 1930s, change made by the U.S. Supreme Court, and driven by a federal government with an unquenchable lust for power.  This power is only available if taken from individuals and states, and is implemented with the power of the federal government to take freedom of choice and liberty from individual people (such as requiring that individuals may only use showerheads that flow a certain amount of water and a great deal of other micromanagement of the individual lives of a supposedly free people).

To accomplish this great change and shift of power, the Supreme Court has had to engage wholesale in exactly the sort of "jury-rigging new and different justifications to shore up the original mistake" that current Supreme Chief Justice Roberts spoke of very recently in Citizens United v. F.E.C.

It is beyond time for the Supreme Court to assign to the dumpster of history the ridiculous Rube Goldberg contraption of baling wire and duct tape that modern Commerce Clause jurisprudence has become.  The pending litigation to validate the principles of the Montana Firearms Freedom Act, MSSA v. Holder, is intended to be the case in which that should happen.  It's time for the Roberts of 2010 to trump the squishy Roberts of 1942.

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Also by Gary Marbut see:

Making Sense of the Ninth Amendment and the Montana Firearms Freedom Act Interplay