Another extremely controversial and constantly abused clause in Article 1, Section 8 is the Commerce Clause. As I mentioned last week, Article 1, Section 8 is the part of the Constitution that lays out what powers Congress has the authority to use. With respect to Commerce, it says Congress has the power:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes…”
At first glance, it doesn’t seem like this clause should be too terribly complicated. The problem is that over the years, the Supreme Court has dramatically expanded the meaning of commerce “among the states” to include any type of activity that directly – or even indirectly – affects interstate commerce.
Using that definition, can you think of anything that wouldn’t affect interstate commerce if you tried hard enough to find a connection?
When it comes to the Commerce Clause, it’s almost like the Supreme Court has created a new game for itself. Have you ever played “The 6 degrees of Kevin Bacon?” Here, it seems like the justices are playing “The 6 degrees of Interstate Commerce” – if you can figure out a way to connect an activity to interstate commerce in six steps or less, Congress can regulate it. Yay!!
I know it seems like I’m exaggerating here (and I am only to the extent that the Supreme Court has never created an actual six-step rule). But in 1942 the Supreme Court actually went so far as to rule that this clause gave Congress the power to regulate a farmer growing wheat on his own private property and then using that same wheat without the product ever leaving his property! You know it took some serious effort to justify that connection.
…….Believe it or not, the Commerce Clause was not intended to grant our federal government the power to tell you what you can’t eat or how much your toilet can flush. It was simply intended to give Congress the authority to ensure that products were able to move freely and easily from one state to the next…….
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