Expansion of National Power at Expense of Individual Liberty

COMMENTARY Conservatism

Expansion of National Power at Expense of Individual Liberty

May 10, 2011 5 min read

Commentary By

Todd F. Gaziano

Former Director, Center for Legal & Judicial Studies

Elizabeth Slattery @EHSlattery

Former Legal Fellow and Appellate Advocacy Program Manager

Although the authority granted to Congress in the commerce clause should be the same as when the Constitution was first ratified, the common understanding about its scope today is much broader. Moreover, this new understanding about its breadth is the primary means by which the central government’s power has grown. This expansion of national power raises serious constitutional problems and necessarily comes at the expense of protections for individual liberty.


Alexander Hamilton and James Madison, in the Federalist 17 and 45 respectively, explained during the ratification debate over the Constitution that the primary purpose of federalism and limits on national power were to better protect individual liberty. Madison described how this would work: if the proper division of power between the national and state governments was preserved, citizens whose liberties were threatened by one level of government could seek help from the other. Indeed, Madison argued that the proper division of power itself would discourage threats to our liberties because officials at both levels of government would compete for citizens’ affections. Thus, the main argument for federalism (and for real limits on national power to make it work) was not a romantic love of state government itself, but as a crucial means to preserve individual freedom.

From the Founding to the New Deal

The commerce clause provides that the “Congress shall have Power…to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” According to legal scholars Robert Bork and Daniel E. Troy, when the Constitution was ratified, “commerce” was understood as the “activities of buying and selling that come after production and before the goods come to rest.” The commerce clause was written to prevent the states from enacting protectionist tariffs that would restrict trade “among” or between the states, not to allow Congress to regulate all commercial activity.

The commerce clause is one of several enumerated powers granted to Congress in the Constitution. As the ratification debates and the Tenth Amendment unquestionably confirmed, everyone in the framing generation agreed that the listed powers were the complete set of those granted. Although some opposed Congress’s power to regulate trade between the states, no one thought that was a catch-all power for Congress to regulate anything that might affect commerce.

In Gibbons v. Ogden (1824), the Supreme Court interpreted “commerce” to include the transportation of goods across state lines and struck down a state law granting a monopoly to one steamboat captain in the waterways between New York and New Jersey. Chief Justice John Marshall conceded that the steamship case might be a close one, but repeatedly explained that the commerce power had real limits, and among them, it excluded the “completely internal commerce of a State.” Marshall’s ruling and his limits are sound, but later courts began to approve gradual usurpations of congressional power.

Nevertheless, courts between 1824 and 1936 still sought to impose some logical limits on Congress’s commerce power. For example, courts held that Congress could not regulate mining or manufacturing conditions under the commerce clause, since that was not interstate commerce.  The courts properly resisted the notion during this period that Congress could regulate anything that indirectly affected interstate commerce (since everything does).

Expansion up to Wickard v. Filburn

The previous limits were abandoned when the Court held that Congress could regulate activities wholly within a single state if they had a “substantial relation to interstate commerce.”  Thus, in 1937 and 1941, the Supreme Court allowed Congress to supersede state laws governing union organizing, wages, and hours. The Court also said that the Tenth Amendment was merely a truism: that it was adopted only to “allay fears that the new government might seek to exercise powers not granted,” and by so stating, confirmed that those fears were justified. This period of expanding Congress’s power under the commerce clause by erroneous “interpretation” culminated with Wickard v. Filburn (1942), which involved a farmer fined for growing too much wheat for his farm consumption. Congress wanted to limit wheat production, and to make the law work, the Court held that Congress could even regulate farmers’ personal consumption.

What’s at stake today


Although the erroneous interpretations were grave from 1937 to 1995, courts recently tried to redefine limits on Congress’s commerce powers. At least all prior cases involved individuals or entities engaged in a commercial activity. When Congress attempted to criminalize carrying guns to school (something all states had already prohibited) under the commerce clause, the Supreme Court, in United States v. Lopez (1995), said “enough,” since that was non-economic behavior. Through Lopez and another case involving Congress’s effort to ban violence against women (also addressed by states under their police power to legislate morals, health and safety), the Court clarified in its United States v. Morrison (2000) ruling that any other reading of the commerce clause would fundamentally upset the balance of powers in the Constitution.

A mandate enacted in the Obamacare law in 2010 that all persons must buy costly health insurance has reignited debate over whether Congress’s power can be stretched further than ever before imagined. It purports to prohibit doing nothing, or inactivity. Indeed, the new healthcare law would “compel activity, rather than…regulate existing economic activity.” Individuals and 27 states are challenging the mandate in court, noting that Congress has never before tried to exercise its commerce power in such a way, and that any theory that justifies the individual mandate would have no limit. They correctly argue that if Congress can regulate bad thoughts (the decision not to buy health insurance), it could regulate anything—something the Constitution explicitly sought to deny the national government.

There are three other powerful reasons to conclude that the commerce power is not that broad. First, if the commerce power was that broad, there would have been no reason to grant the other powers to Congress, such as the power to issue patents, lay taxes, or coin money. Any interpretation of one clause of the Constitution that renders most others redundant is absurd and must be disregarded.

Second, such an unlimited national power would effectively leave the states no sovereign power of their own. The supremacy clause of the Constitution states that federal laws “shall be the supreme law of the land.” Thus, if Congress can regulate in areas of traditional state sovereignty, Congress could supersede all state laws. In Federalist No. 45, Madison wrote that:

The powers delegated…to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.

If Congress can regulate inactivity, there would be no area reserved exclusively for state control.

Finally, if Congress can mandate anything and there is no area of exclusive state control, there is no longer any federalism protection for individual freedom. We might still be left with some individual freedoms, but only so many and for so long as Congress chooses to allow. That is not what the real Constitution provides.


Todd Gaziano is a legal fellow at The Heritage Foundation. Elizabeth Garvey is an analyst at The Heritage Foundation.

First appeared in ABC-CLIO

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