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Economic Liberty and The Constitution Blog Series: #2 - Unbridled Expansion of the Commerce Clause

The Commerce Clause is an enumerated power found in Article 1 section 8 of the Constitution and was a means of separating power from the President, but through the years Congress and the courts have manipulated the intention of the Commerce Clause. The Founding Fathers feared too much power being in the hands of any one branch of the government and were determined to prevent our elected officials from becoming a ruling class. The only flaw with the logic of the Founding Fathers was underestimating how those who replaced them would distort a clause meant to limit government power into one providing Congress with virtually limitless power. A small amount of time and research affirms that the concept of States’ rights, once championed by our Founders, was forgotten no more than 40 years after the signing of the Declaration of Independence.

In 1824 a legal battle made its way up to the Supreme Court and the result was the expansion of the Commerce clause, Congressional power, and a reduction of States’ rights. In Gibbons v. Ogden the legality of a state giving exclusive rights to any one person to operate steam ships on state waters was examined. New York had provided Ogden the exclusive right to navigate state waters; others could use the waterways but were required to pay a licensing fee. As questionable as this practice may be by eliminating a free market and creating barriers to competition, it was widespread and at the time a state issue. In a 6-0 decision, the Supreme Court determined that State laws requiring boat owners to pay an operating fee were invalid because they conflicted with Congressional power to regulate interstate commerce. The Justices also failed to detail the specific regulatory powers of Congress under the Commerce Clause, leaving the ruling open for interpretation by later courts. This set a very dangerous precedent of taking power from States and giving it to the men sitting in Congress. 

Again in 1942 the Supreme Court made a ruling that grossly expanded the power of Congressional regulation. In Wickard v. Filburn the Court looked into a farm’s wheat production. The Agriculture Adjustment Act of 1938 set quotas on how much wheat each farmer could grow in order to maintain a stable market price. Wickard was fined for overproducing when he grew extra wheat for personal use and to feed his livestock. When Wickard petitioned against the fine, he received nothing but disappointment. The Supreme Court ruled that even wheat grown that was not directly sold on the market affected commerce, therefore, dragging down the market price. The Justices used a definition of the wheat market the government created in the AAA to make their decision.

The Agricultural Adjustment Act of 1938 (Act), 7 U.S.C.S. §§ 1281 and 1340, includes a definition of "market" and its derivatives, so that as related to wheat, in addition to its conventional meaning, it also means to dispose of "by feeding to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of." Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises.

In determining this definition as sound the Court was obligated to rule against Wickard and thus increased government regulation by declaring it legal for the government to fine a person for growing crops that have either a direct or indirect effect on the market of that good.These rulings set precedents that stripped States’ rights and expanded Congress’ ability to regulate commerce to virtually everything. Congress and the Supreme Court have distorted the foundation of this country by taking power away from “We the People” and giving it to our elected officials, a direct contradiction of what our Founding Fathers had intended. Our Founders enumerated strict, limited powers to Congress in the Constitution, omitting rights reserved for the States. Over time, however, interpretation of the Commerce Clause has removed any limits on Congressional power to regulate.


The greatest explanation of how commerce is regulated, on what, and why, I have ever read by historian Paul Madison that completely conforms with Gibbons v Ogden:


They have proved your point with the latest seizure of power in the Obama Care Mandate. We need to continue to vote for change, change out all those who don't live up to their oath to support and defend the constitution.


By the logic of the court ruling in Wickard v. Filburn, there is nothing stopping the congress from making it illegal to mow my own lawn.... right? I mean in doing so, I am effectively taking a job away from a landscaper. Or how about they make it illegal to cook my own breakfast? If I do that, I am costing someone a job at Dennys. We have got to stop those in the federal government who continue to encroach on State's rights. If we do not, we are doomed.

James Crosby

Hey Buddy,
Wasn't Civil Rights also enacted the Commerce Clause? Why don't you mention this?