The Commerce Clause: Expansion of Federal Power

The Commerce Clause
Congress shall have the power...to regulate Commerce with foreign nations, and among the several States, and with Indian tribes...

Up until 1937, this clause was used only in narrow respects, in terms of actual commerce that crossed state lines. It prohibited government intervention in contracts and property rights. FDR changed it with his Court packing and was able to get a more expansive interpretation of this clause. It allowed for more application to civil liberties and other non-commercial subject-matter. It covered minimum wages, labor standards, civil rights, prosecution of sex offenders, and gun control laws. As long as the government could prove some element of the statute involved something that crossed state lines or involved more than one state, the Court got out of its way.

It was not until 1995 in United States v. Lopez that the Supreme Court restores some of the limitations of government power in terms of this clause of the Constitution. However, most of it is still in place. Through this clause the federal government has been able to increase its power beyond its enumerated powers and the original intent of the Constitution.

In civics class, it is taught that the federal government has specific enumerated powers in the Constitution, while the States have plenary powers restricted only by the provisions of the Constitution. In other words, the Constitution states specifically what the federal government CAN do, but for the states, it states specifically what they CANNOT do. The purpose was to give states greater jurisdiction while limiting the role of the federal government.

Today the federal government has flexibiltiy in extending its authority and the states have been manipulated to where they willingly defer to the central government. Walter Russell Mead provided an interesting take. He argues that the United States changed in the mid-20th century to a new "Blue Model" with large and stable entities in the public, private, and mixed sectors of the economy. These large entities provided lifetime employment and substantial resources to better education and other public services. Costs were expected to go down making these services affordable. It was progressive and was considered an achievement in reconciling capitalism with social and economic security, according to Mead.

As we all know it is going in the opposite direction. Costs are going up and the services offered are seen as inadequate or flawed. Investments in a centralized government bureaucracy often gets chopped up with administrative costs, pensions, and high salaries for public sector workers, which are now all unionized and bargain for these funds. They are interested in self-preservation and power not quality services. We can no longer afford this "Blue Model" and it is failing to provide the services offered.

The power and reach of the federal government is overstretched. It is time the blue model is dismantled and we begin a breaking down in the major oligopolies of public services, devolving it to the states or the private sector. It will also require that the Constitution begin to be applied as if it means what it says. The Commerce Clause must be pulled back. This all began with a stretching of that clause and can be solved by returning to first principles.

It will involve tough choices. These giant entities will have to be reduced in size, cut costs, or be eliminated completely. States must be given more leeway to actually try new policies and ideas rather than being "directed" by federal agencies and statutes to follow a single path. States must also move towards greater independence from the federal government in terms of money and institutional capability.

Conservatives love this idea. Conservatism has a lot to do with going with what got us here, which involves greatly the U.S. Constitution and the principles of the founders. The Commerce Clause and its expansion is a demonstration of the battle between conservatives and liberals. Liberals wanted the blue model, and they still want it. However, we can't afford it and it is provided sub-standard results. Conservatives want to begin working towards a new model, or rather adoption of something that better resembles the pre-1937 system.