Originalism At Work in Lopez:

An Examination of the Recent Trend in Commerce Clause Jurisprudence



By William Serwetman

August 17, 2001

I.  Introduction

In the 1995 case of United States v. Lopez[1], the Supreme Court held the Gun Free School Zones Act[2] to be unconstitutional because Congress lacked valid authority to enact it.  This represented a substantial break from the past fifty years of cases, in which the Court had given Congress free reign to pass laws under the auspices of the Commerce Clause[3].  This break is evident in the various concurring opinions within the conservative majority (who base their arguments on a textual and structural analysis of the Commerce Clause itself), and the liberal minority (who base their arguments on the holdings of the post-depression era Commerce Clause cases).  While the minority opinion was consistent with the post depression-trend of extending the Commerce Clause power to activities increasingly more remote from “commerce,” [4] the majority took a more originalist position now widely recognized as the beginning of a new chapter in Commerce Clause jurisprudence.

In Lopez, the majority criticizes the minority for relying on interpretations of the Commerce Clause unsupported by the Constitution, whereas the minority ironically criticizes the majority for ignoring the custom of judicial restraint and the standing case law.  The two camps seem to operate on different wavelengths and largely argue right past each other.  This incompatibility highlights the inconsistency of post-depression Commerce Clause cases with the original intent of the framers, and invites reanalysis of those cases.

We can only speculate on how this ideological head-on collision will be resolved in future cases.  Regardless of the future impact of the still-raging academic debate, the fate of Lopez and its companion cases ultimately rests on the on the future composition of the court.  Whether Lopez signifies the beginning of a permanent alteration of the degree of power held by Congress over non-commercial activity, or is overruled by the Court in the future, will probably be determined by the ideology of the next appointee to the Court.


II.  The History of the Commerce Clause

     In the fifty-eight years preceding Lopez, cases had dramatically and rapidly expanded Congress’ commerce power to the point where Congress could be said to have a de facto federal police power.  The Lopez case did not explicitly put these previous decisions on trial, but it raised the question of how far the holdings of these cases could be stretched to allow federal regulation of non-commercial activity.  The minority argued that this case law should govern and denied that its application required any further stretching at all.

     Under the Constitution, states clearly a reserve a “police power” power to make their own laws and enforce them within the limits of the Fourteenth Amendment[5].  While the police powers of the states are well established and well documented, Congress was deliberately denied any comparable broad authority by the Constitution.  As a result, most laws made by Congress are enacted under its Commerce Clause authority because this power has historically been defined quite broadly.  The first case to test its limits was Gibbons v. Ogden[6], decided in 1824 by the Marshall Court.

     Chief Justice Marshall confirmed that the reach of the Commerce Clause was broad, but recognized that it had clear limitations. He observed that interstate commerce is “that commerce which concerns more states than one…” but not that “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…” On top of this literal definition, he allowed that “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.”  By this he meant that interstate commerce does not occur only in the instant during which goods are carried over state boundaries; commerce subject to regulation continues as long as there are activities in progress which have a commercial connection with another state.  By this definition, regulation of commerce was the sole domain of the states until it affected another state commercially.  The big question left unclear by Ogden was how significant of an effect on interstate commerce was necessary for an activity to fall under Congress’s regulatory authority, and that is the question that all subsequent cases have addressed.

     Throughout the nineteenth century and into the twentieth, the Court took a very narrow view of the Commerce Power, insisting that activities must have a direct effect on commerce for Congress to assert authority.  Railroads were quickly acknowledged to be subject to federal regulations under the “Shreveport Rate” case,[7] but production (in the form of manufacturing, mining, and agriculture) was considered an exempt intra-state activity.  The 1895 case of United States v. E.C. Knight[8] kept manufacturing free from federal regulation until the 1930s, holding that although E.C. Knight controlled 98% of the sugar refining industry, the Sherman Anti-Trust Act did not extend because the manufacturers were not directly involved in commerce.

     The requirement that an activity directly affect interstate commerce led the Court to invalidate much of Roosevelt’s early New Deal legislation.  A variety of labor laws were overturned through this type of analysis in 1935 and 1936.[9]  In 1937, the beginning of his second term, President Roosevelt attempted to pass the “Judiciary Reorganization Bill.”  If enacted, it would have allowed the president to appoint a new Justice for every Justice on the Court over the age of 70, which at the time would have allowed him to appoint six new Justices.  While the plan was considered by the Senate, the Supreme Court upheld New Deal legislation in two cases, including National Labor Relations Board v. Jones.  In a 5-4 decision, the Court reversed itself and abandoned the “direct effect” test and adopted the “substantial effect” test in its place.[10]  This reversal was all the more spectacular because in the 1935 case of A.L.A. Schechter Poultry Corp. v. United States,[11] the Court had described “the distinction between direct and indirect effects of intrastate transactions upon interstate commerce as ‘a fundamental one, essential to the maintenance of our constitutional system’.”[12]  In light of this clear turnaround and the controversy the Court Packing Plan had aroused, the Senate sent the Judiciary Reorganization Bill back to the Senate Judiciary Committee, killing it.  The new “substantial effect” standard was soon used to extend the commerce power farther than ever in the 1941 case of United States v. Darby[13] and 1942 case of Wickard v. Filburn[14].

     Darby upheld the Fair Labor Standards Act of 1938, and allowed Congress to regulate production.  Wickard went a step further and applied Darby to a farmer growing wheat on his own land for his own consumption.  The rationale was that although the wheat was not intended to enter commerce, the aggregate effect of many farmers growing their own wheat would substantially affect interstate commerce.  The Court found that the “Necessary and Proper” Clause[15] allowed Congress to regulate the individual farmers because it was necessary and proper to do so in order to regulate commerce, even though the farmers were not themselves engaged in commerce.  The Court went so far as to explicitly repudiate its previous direct vs. indirect effect standard.  Even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.[16]  After this case, the Commerce Clause was used to justify federal regulation in cases where previously only states would have been able regulate through their police power.

     President Roosevelt was able to appoint six new Justices sympathetic to his legislative program over the next four years[17] and elevated liberal Justice Stone to the post of Chief Justice, insuring that future courts would be far more accommodating towards “progressive” legislation.  The Post-1937 interpretation of the Commerce Clause would remain largely unchallenged outside of academic circles until the Lopez case arose in 1995.


III. The Minority Argument

     The liberal minority in Lopez[18] argues that under the principle of stare decisis, the aforementioned cases should control the decision.  Their primary argument is that the aggregate of effects of gun possession in schools affects education, which in turn affects production and commerce.  They cite two 1964 cases, Heart of Atlanta Motel[19] and Katzenbach v. McClung[20] as examples of cases in which local discrimination were held to restrict and substantially affect interstate commerce.  They argued that violence in schools impairs the function of the educational system and therefore restricts production and interstate commerce.  By this chain of inference, the dissenters claim that in aggregate, guns in school zones substantially affect interstate commerce.

     Justice Souter criticizes the pre-1937 case law for espousing a “highly formalistic notions of ‘commerce’ to invalidate federal social and economic legislation” and he goes on to accuse the majority of interjecting ideology into the decision much the way the Court did in Lochner v. New York.  Specifically, he claims that the Court oversteps its Constitutional authority by setting aside the policy of judicial restraint to scrutinize the Gun-Free School Zones Act for a rational basis. [21]

IV. The Majority Approach and the Concurrences:

     Chief Justice Rehnquist opens the majority’s analysis in Lopez by considering the relationship and balance of power between federal and state governments:

We start with first principles. The Constitution creates a federal government of enumerated powers. See Art. I, § 8. As James Madison wrote, ‘the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’ The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority ‘was adopted by the Framers to ensure protection of our fundamental liberties.’ Gregory v. Ashcroft, 501 U.S. 452, 458, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991) ….‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’[22]


The Lopez majority argued that even the case law cited by the minority indicates that the commerce power had outer limits, and that the Gun-Free School Zone Act exceeded all of those limits. As Chief Justice Rehnquist put it, “Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.”[23]

     The majority synthesized three broad categories of activity subject to the commerce power[24]:  As they defined it, the Commerce Clause gave Congress the power to regulate channels of interstate commerce[25], the instrumentalities of interstate commerce[26], and activities that substantially effect interstate commerce[27], regardless of how directly interstate commerce was affected.

     However, the Court chose to follow the principle of stare decisis and maintain the “substantial effect” test with regard to the Commerce Clause authority of Congress.  Though Justice Thomas expressed his willingness and desire to return to the “direct effect” because it would be more in line with the purpose of the Commerce Clause, the Court did not address the issue.  Rather, the Court interpreted the Gun-Free School Zones Act as an extension by Congress well beyond the authority already granted to the legislature by the Supreme Court.  The Court was willing to stand firm, but not retract previous rulings as Thomas envisioned or extend Congress’ power further as the dissent wanted.

     Justice Thomas comments that the substantial effects standard is still too vague, and as a replacement he demands that the Court draft a test for the Commerce Clause that is subject more to the rule of law as embodied in the Constitution and less in the whims of those in government.  Such a position would not necessarily reverse Commerce Clause jurisprudence full circle to where it stood at the time of Gibbons v. Ogden, but at the very least it would give the people and their government a sense of what powers Congress actually possesses and at what point they cross the line into the realm of assuming extra-legal powers.

     While still fairly broad, the “substantial effects” standard nevertheless appealed to the majority because it preserved the dual federalism system so painstakingly established in the Constitution, specifically the enumeration of Congressional powers and culminating with the Tenth Amendment:

[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred is withheld, and belongs to the state authorities.[28]


     And the Court held that the “inferences piled upon inferences” drawn by the minority failed to show a substantial relation and made federal power too broad and police-like.  The deeper philosophical differences underlying the conflict are simple: originalism vs. reinterpretation.  Granting Congress a de facto federal police power would destroy both enumerated powers and federalism.  Chief Justice Rehnquist explains “We rejected these ‘costs of crime’ and ‘national productivity’ arguments because they would permit Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.”[29]  That would defy the not only a structural analysis, but also the plain meaning of the Commerce Clause.  The Court justified its decision even under rational basis scrutiny, because it was clear from the legislative history that Congress never gathered any evidence of an effect on interstate commerce, nor was any visible to the naked eye.

     Justice Kennedy also authored a concurring opinion, which was joined by Justice O’Connor.[30]  Though they voted with the majority, Kennedy’s opinion exhibited great reluctance on account of the Court’s focus on the issue of Congress’ enumerated powers.  Instead, they ignored enumerated powers entirely and focused solely on the issue of federalism.  Such a tenuous agreement held by these two Justices should concern the majority, as in the future a similar case may arise which does not call into question the issue of federalism but rather focuses on an over expansion of Congressional authority.  Justices Kennedy and O’Connor clearly did not spark confidence in the conservative majority with its concurrence in Lopez.

Justice Thomas gives a proper textual analysis concerning the expansion of Congressional authority.  He notes that, if the Constitution intended to give Congress power over everything that affected commerce, there would not have been specific grants of powers over patents, trademarks, bankruptcy law, postage, and post roads. In this case, the majority held that the commerce power only allowed Congress the power to regulate the channels and instrumentalities of interstate commerce, or activity that substantially relates to it.

The debate was continued in United States v. Morrison[31], and the battle lines are drawn more clearly as the same 5-4 majority voted to invalidate the Violence Against Women Act of 1994.[32] Justice Thomas provided a one-paragraph concurrence:

The majority opinion correctly applies our decision in United States v. Lopez, 514 U.S. 549 [cites omitted] (1995), and I join it in full. I write separately only to express my view that the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.[33]


     Again the majority and dissent similarly re-iterated their respective positions in Lopez, not unusual considering that no Justices retired from the bench in the five years that had elapsed.  Nonetheless, Thomas’ opinion showed the greatest commitment to the concept of limitations placed on Congress, especially when a forsaking of such a commitment necessarily would lead to a general police power possessed by Congress and unchecked by the Judiciary.


V.  The Underlying Philosophy:  Pluralism and Originalism

The Lopez majority opinion was based on commitment to the principles of federalism and enumerated powers.  The dissenters, however, based their entire argument on interpretations of standing case law rather than constitutional principles.

Federalism and enumerated powers were both calculated to achieve what Madison called “pluralism.” Since factions always exist (rich and poor, Northerners and Southerners, Catholics and Protestants, etc.), Madison sought to establish a stable government in which they would co-exist peacefully and respect each other’s rights without using the law as a weapon against each other.  For example, in Federalist #51, Madison asserts that it is important to maintain the federal system not only to prevent the government from oppressing individuals (the main concern of most citizens) but also to keep factions of society from oppressing each other.  The only ways of preventing this type of injustice is to adopt a pluralistic system in which all factions are tolerated and guaranteed their basic rights, no matter which faction dominates.  Madison firmly believed that the liberties of individuals of different religions and levels of wealth should be protected from all forms of tyranny by all means available that would not prevent effective government.

The Founders hoped to keep government out of interest group politics by carefully limiting the scope of government power and specifically enumerating the powers that the federal government would possess.  All other powers were reserved for the states and the people, so that the federal government could not take sides. The Tenth Amendment was added to clarify this point: "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.”[34] The framers wanted people to be free to solve their own problems amongst themselves.  For some time, this worked fairly well.  The majority should be commended for their defense of these principles.

VI.  Analysis

While the Lopez and Morrison cases are a drastic shift from post-FDR era law, they are consistent with the original, pre-1937 vision of a limited federal government, and go a long way towards reestablishing the relative legitimacy of the federal government.

We frequently hear arguments that the modern world faces more complex problems than the pre-industrial time in which our Constitution was written, and that we therefore need government to play a greater role in our lives.  Whether this is true or not, it does not excuse the Courts, which exist to interpret the Constitution as it was written, for allowing the unchecked expansion of the commerce power.  The Justices’ power of interpretation has always understood as a guardianship of the document as it was drafted by the framers and ratified by the states, not as a license to arbitrarily invent a new unwritten constitution.

nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing -- either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court's desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support.[35]


Randy Barnett provides a brilliant perspective on why originalism is so important to modern Constitutional jurisprudence.  In his essay “Originalism For Non-Originalists: Why you should want to enforce the original meaning of the Constitution[36]”, Barnet shows that the conventional wisdom among law professors is that the doctrine of originalism, the conviction that the constitution should be interpreted on the basis of the original intent of its framers, died in the 1980s.  Robert Bork, who was nominated for the Supreme Court in 1987 by President Reagan, was attacked in a series of influential law review articles and was eventually rejected by the Senate.  The originalist doctrine which Bork championed was widely discredited because it lacked answers to two lines of criticism: first, that it was unworkable, and second, that it was itself contrary to the original intent of the Framers.

Both arguments were fairly straightforward; originalism was unworkable because it is nearly impossible to ascertain in aggregate the views of the Framers as a body, much less project them onto a current case (the "channeling the Framers" problem).  Justice Scalia refers to this as a problem of application, and speculates that it may be “a task sometimes better suited to the historian than the lawyer.”[37]

The self-contradiction inherent to originalism lay in the fact that the Framers opposed interpretative approaches to the constitution they produced.

A third criticism that particularly bothered Barnett at the time was the "dead hand argument;" that the wishes of the Framers, who at the time represented only white men, should not bind Americans of both sexes and all races alive today.

Despite its supposed refutation, however, no new interpretation has been advanced or accepted by the legal community, and discussion of the original intent of the Founders remains a starting point in modern legal theory, for lack of an alternative.

Where originalism has historically referred to a search for original intent, Barnett advances a new originalism based on the search for original semantic meaning.  Under this approach, the subjective intentions of the Framers lose their importance in favor of the objective meaning likely to be understood by a rational person in the proper context (late 18th century America).  While the shift is subtle, this new originalism answers the criticisms that old originalism could not.  As contract lawyers have known for some time, it is far simpler to analyze objective meaning of a document than it is to guess the aggregate expectations of the Framers as a body.

While the Constitution is not a typical contract (because it lacks consent of all parties involved), it is a written instrument, so some contract law doctrines should apply.  Several established contract doctrines support new originalism.  For example, the Statute of Frauds is an old common law doctrine that requires formalities such as written contracts, wax seals, or witnesses in certain situations, such as the transfer of land.  Formality in general and written documents in particular serves several functions in contract formation-- they provide evidence, instill a sense of caution among the parties, and can clarify the exact nature of the agreement.  In situations where the agreement governs matters of life and death, such as political agreements, the advantages of putting agreements in writing are obvious.

Next, the Parole Evidence rule holds that when the terms of an agreement are disputed, only what lies within "the four corners of the document" is admissible evidence, and extrinsic evidence of the intent of the parties is irrelevant.  Furthermore, there is the textualist approach: in interpreting the agreement itself we rely on public understanding of terms used as of the time of signing, or trade usage where appropriate.  Adopting a new meaning is inappropriate because it would substantively change the agreement, violating the parole evidence rule and undermining the value of committing the agreement to writing.  Modifications to agreements require the same degree of formality as the original document.

This approach also addresses the dead hand criticism.  While nothing inherently binds us to the agreements of the Framers, we have two choices:

1. We continue to respect the document and be bound by it because it is in our interests to do so.  The Constitution does a good job protecting our freedom and change it only by ratifying amendments as provided in Article V of the Constitution; or

2. We change the meaning of parts of it we don't like and in the process obliterate the rule of law.  By changing the meaning of the Constitution without amending it, we potentially abandon the whole document, making all of its protections equally vulnerable.  By stripping ourselves of its protections we subject ourselves to whatever replaces it, whether the replacement is an unwritten, informal interpretation of the original document or it is replaced outright.

Justice Scalia echoes this position:

I take the need for theoretical legitimacy seriously, and even if one assumes (as many nonoriginalists do not even bother to do) that the Constitution was originally meant to expound evolving rather than permanent values, as I discussed earlier I see no basis for believing that supervision of the evolution would have been committed to the courts. At an even more general theoretical level, originalism seems to me more compatible with the nature and purpose of a Constitution in a democratic system. A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect "current values." Elections take care of that quite well. The purpose of constitutional guarantees -- and in particular those constitutional guarantees of individual rights that are at the center of this controversy -- is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.[38]


Barnett concedes that the analogy to contract law has clear limits, since the Constitution never received the unanimous consent of the governed.  While the Framers were all white men, the Constitution purports to govern women, children, slaves, prisoners, future immigrants, etc., and one cannot consent for anyone but oneself.  While some form of general acquiescence is necessary for the establishment of a government, that acquiescence does not assume unanimous consent by any conceivable definition.

If anything legitimizes our Constitution, it is the merits of the law-making process it establishes.  Because it requires laws made under its auspices to be necessary, proper and just, we should have no reason to object to it.  Constitutions will generally be considered legitimate as long as their contents are just and the writing ensures that a good system will be locked in place over time.

Barnett concedes that not all of the ambiguities in our constitution can be solved through original meaning originalism, because in some of the more abstract areas the framers provided a large degree of latitude.  Original intent should not bind lawmakers filling these gaps through Constitutional construction, so long as the measures they take are necessary, proper, and do not contradict any of the explicit provisions of the Constitution.

Barnett believes that the Constitution was not legitimate for non-whites until after the inclusion of the Thirteenth, Fourteenth and Fifteenth Amendments, and perhaps not until later, and that it's legitimacy today is open to question because of its departure from original meaning.  He argues that intrusions into every right except for free speech (the most clearly enumerated right in the Bill of Rights) pass through Congress, the President and the Supreme Court without any kind of meaningful scrutiny.  Courts today look for any conceivable reason for a piece of legislation and then defer to Congress on its constitutionality, rather than assert its authority of judicial review to strike laws that are clearly repugnant to the Constitution.  The people no longer have any reason to believe that legislation enacted by Congress is necessary and proper, rather the people generally expect that all legislation is serving some special interests (Calabresi argues that public choice theory suggests we have good reason to distrust such legislation[39]).  While we may acquiesce to such conditions, Barnett believes we have no moral duty to obey laws made in such a way.

VII. Conclusion

The Framers of our Constitution were very aware of the abuses that always attach to a government of men and not of laws.  It was because of such abuses that the United States of America was created and cemented with the Articles of Confederation and then the United States Constitution.  During the summer of 1787 a few dozen men from thirteen States gathered in order to attempt to reach an agreement on an instrument that would alleviate the common ills while at the same time protect the sovereignty of the several states.  When the Constitution was sent to the states for ratification, James Madison, Alexander Hamilton and John Jay concentrated their efforts on convincing the people and the state legislature of New York of the value of the Constitution.

The one common element found in every criticism of the new Constitution was that it granted powers to the new federal government that were far too broad.  In particular, many of these critics assailed the “Necessary and Proper clause” because it was too open-ended.  The Federalists assured these critics that this clause was necessary in order to allow the federal government to act upon circumstances that cannot be foreseen; but nevertheless, abuse of this clause would not occur because Congress would still be required to derive its power to act under this clause from other enumerated powers within the Constitution.

For exactly 150 years, the Supreme Court firmly rejected Congressional intrusions beyond the scope of its authority.  The “switch in time that saved nine” in 1937, however, marked a fateful turn away from the rule of law and toward a lawlessness which dressed the Constitution as “a living document”.  Such action did not breathe new life into our Constitution, however; instead, it drove a stake through the heart of our social contract.  By permitting Congress to seize any power it chooses, the Supreme Court accepted the role of the witch-doctor that creates authority where none exists.

The Lopez decision provided a small breath of fresh air from Congress’ aspirations to limitless federal police power, and the Morrison case last year demonstrated that Lopez was not a momentary fluke.  Some originalists and other opponents of the “living document” approach read these cases as the turning point toward a new conservatism.  However, with the exception of Justice Thomas, none of the other Justices in the majority in these two cases showed any signs of turning back the clock on Congress’ powers under the Commerce Clause.  The law of the land as given by the Supreme Court still holds that the “substantial effect” test governs Congress’ authority in regulating interstate commerce.”  And as long as the “substantial effect” test remains, Congress will continue to usurp the authority that it was never granted by the Constitution.


Barnett, Randy.  An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611. (1999)


Calabresi, Steven G. A Government of Limited and Enumerated Powers: In Defense if United States v. Lopez. 94 Mich. L. Rev. 752. (1995)


Cohen, William, and Varat, Jonathan D.  Cases and Materials Constitutional Law, Tenth Edition, 1997.


Epstein, Richard A. The Proper Scope of the Commerce Power.  73 Va. L. Rev. 1387.  (1987)


Hall, Kermit L., Wiecek, William M., and Finkelman, Paul.  American Legal History Cases and Materials, Second Edition. (1996)


Hasenstab, Dan.  Is Hate a Form of Commerce?  The Questionable Authority of Federal ‘Hate Crime’ Legislation.  45 St. Louis U. L.J. 973, 980.  (2001)


Madison and Hamilton.  The Federalist Papers. (1788)


Scalia, Antonin.  Originalism: The Lesser Evil. 57 U. Cin. L. Rev. 849 (1989)


[1] 514 U.S. 549 (1995).  A San Antonio high school student was charged with possession of a firearm on school grounds under a federal law.  The district court convicted him, and he appealed to the Fifth Circuit, which reversed on the grounds that the act was outside Congress’s enumerated powers.  The Supreme Court affirmed the Fifth Circuit.

[2] The Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). This law made it a title 18 federal criminal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  18 U.S.C. § 921(a)(25).  The act later defines a “school zone” as “in, or on the grounds of, a public parochial, or private school” or “within a distance of 1,000 feet from the grounds of a public, parochial, or private school.”

[3] U.S. CONST, Art. I, Section 8: “Congress shall have the power to… regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes…”

[4] See, generally, United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); Heart of Atlanta Motel 379 U.S. 241 (1964).

[5] See generally U.S. CONST. amend X; Madison, James, Federalist #45; Munn v. Illinois 94 U.S. 113 (1877)

[6] Gibbons v. Ogden 22 U.S (9 Wheat.) 1, 194, 196 (1824).

[7] Houston, East & West Texas Railway Co. v. United States, 234 U.S. 342 (1914).

[8] U.S. v. E.C. Knight & Co. 156 U.S. 1; 15 S. Ct. 249; 39 L. Ed. 325 (1895)

[9] See, e.g. A.L. A. Schechter Poultry Corporation v. Unites States 295 U.S. 495 (1935); Railroad Retirement Board v.Altron RR Co., 295 U.S. 330 (1935); and Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[10] National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937)

[11] 295 U.S. 495 (1935).

[12] Lopez 514 U.S. 549 at 555, citing Schechter, 295 U.S. at 512.

[13] 312 U.S. 100 (1941).

[14] 317 U.S. 111 (1942).

[15] “Congress shall have the power... To Make all Laws which shall be necessary and proper for carrying into Execution the Foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S CONST, Art. I, Section 8.

[16] Wickard, 317 U.S. at 125.

[17] President Roosevelt appointed Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, and Robert H. Jackson.

[18] The dissenting Justices were Breyer, Ginsburg, Souter and Stevens.

[19] 379 U.S. 241 (1964).

[20] 379 U.S. 294 (1964).

[21] 514 U.S. 549 at 605 (1995).

[22] Lopez, 514 U.S. at 552.

[23] Id. at 560.

[24] Id. at 559-560

[25] See United States v. Darby, 312 U.S. 100 (1941); See also Heart of Atlanta Motel, Inc. v. United States, supra.

[26] See the Shreveport Rate cases

[27] See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[28] 3 Joseph Story, Commentaries on the Constitution of the United States 752 (Boston, Hilliard, Gray, & Co. 1833).


[29] U.S. v. Morrison, 529 U.S. 598 at 612

[30] Lopez, 514 U.S. at 568.

[31] 529 U.S. 598 (2000).

[32] In this case, Virgina Tech student was raped by two fellow students, who she later sued them under 42 U.S.C. § 13981(b), the Violence Against Women Act, a federal cause of action for victims of gender-motivated crimes.  The Act was found unconstitutional due to lack of substantial relation to commerce, as per the Lopez standard.

[33] Morrison, 529 U.S. at 627.

[34] U.S. CONST. amend X.

[35] Scalia, Antonin.  Originalism: The Lesser Evil.  57 U. Cin. L. Rev. 849,852

[36] Barnett, Randy.  An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611.

[37] Scalia, Antonin.  Originalism: The Lesser Evil.  Id. at 856-857.

[38] Originalism: The Lesser Evil, supra, at 862

[39] A Government of Limited and Enumerated Powers: In Defense if United States v. Lopez. Steven G. Calabresi, 94 Mich. L. Rev. 752, 790-800

Back to my writing

Back to Home