Wickard

In the first half of the 20th Century, the Supreme Court stretched the intent of the Constitution beyond all recognition. The historical shift that permanently expanded federal power occurred during the New Deal Era (1937). Before that point, the Supreme Court strictly limited Congress by drawing sharp lines between “local” production (like manufacturing, farming, and mining) and “interstate” commerce (the actual shipping of goods).

Frustrated by repeated legal defeats, President Roosevelt proposed the Judiciary Reorganization Bill of 1937. This plan would allow him to add up to six new, sympathetic justices to the Supreme Court. While Congress rejected the plan, the threat of packing the Court heavily pressured the sitting justices to rule his way more often. Justice Owen Roberts, a supposedly conservative justice, shifted his vote in a landmark labor case, creating a new majority that favored the expansion of Federal power. The new lever that allowed the Federal Government to insert it’s abnormally large nose into everyone’s affairs was the commerce clause.

The Constitution grants the Federal government the power to regulate commerce through the “commerce clause.” The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”

As with many things, they use the commerce clause to get their hands on powers they otherwise wouldn’t have. There were a few cases involving the commerce clause that came before it, but the one doing the most damage to state’s rights was Wickard v. Filburn (1942). I’ve blogged on this case a couple of times. That case concerned a farmer that was growing wheat for use on his own farm. He contended that he was not subject to the limits that the Federal Government had placed on wheat production, because his wheat was not sold, so it could not be regulated as commerce, let alone “interstate” commerce (described in the Constitution as “Commerce… among the several states”). The Supreme Court disagreed. They held that because he was growing his own wheat, he did not buy wheat from someone else. Since he did not buy someone else’s wheat, this affected interstate commerce and made his wheat subject to the regulations.

This court case basically says that the Feds can rule over anyone they please, without worrying about enumerated powers. All they have to do is play “six degrees of separation” to show that the behavior they wish to dictate affected interstate commerce in some way, no matter how tenuous.

The reason I bring this up today is because Justice Thomas’ concurrence in United States v. Hemani, in which he urged courts to reconsider the constitutional foundation of federal law. Thomas argued that goes too far, writing the Commerce Clause authorizes Congress only “to regulate the buying and selling of goods and services trafficked across state lines,” not “activities wholly separated from business, such as gun possession.”

This is an opinion that anyone with half a brain could see, what the gun ban crowd calls “common sense.” If I carve a toy out of wood and give it to my child, I didn’t affect interstate commerce, but those who would increase Federal powers would say it does. The same goes for making my own firearm at home, or for a felon who possesses a firearm. None of those activities affect interstate commerce, and are thus state law issues and none of the Federal government’s business.

“Congress cannot regulate the possession of every thing that ever traveled across state lines,” Thomas wrote, warning that such an interpretation risks converting Congress’ limited commerce authority into “a general police power of the sort retained by the States.”

Judge Stephen Higginson said striking down Section 922(g) would be “a significant departure from existing, settled, and binding Commerce Clause jurisprudence” and could “mark the start of a new, severely contracted Commerce Clause era.”

“Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?” Higginson asked. “Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?”

If the financial transactions, intellectual property, or child pornography crosses state lines, then yes, the Federal government may criminalize it. If not, then that would be up to the states. No one is saying these things shouldn’t be illegal- I am saying that it should be up to each state to make their own laws.

That’s what is meant by a Republic- each member of the republic retains its own identity.