By Jeffrey R. Snyder,

The federal government was supposed to be limited to a few defined powers. The Tenth Amendment to the Constitution- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” -confirms it.

The federal government, of course, does not at present respect its constitutional limits. The chief culprit, in this regard, is the massive social legislation and regulatory apparatus enacted under Congress’s constitutional authority “to regulate Commerce . . . among the several states” (Article 1, Section 8, Clause 3).

That clause, as interpreted by the Supreme Court, has been the source of constitutional authority for the great expansion of federal control over health, morals, education, crime, labor, environmental conditions, and retirement and unemployment insurance programs. For example, provisions of the Civil Rights Act of 1964 outlawing racial discrimination by private individuals were upheld as a valid exercise of Congress’s power under the interstate commerce clause. In Katzenbach v. McClung (1964), the Court held that racial discrimination, in the form of refusal to serve blacks at privately owned restaurants, imposed burdens on interstate commerce that Congress could seek to eliminate.

The Court took this tack because the Constitution does not grant Congress a general police power to legislate in the realm of public morals. That is, Congress has no authority to pass such a law simply on the basis that racial discrimination is a moral abomination, or even on grounds that the institutionalized treatment of a racial class as subhuman is apt to result in social upheaval, riot, or other breaches of the public peace. Yet let it be found, or reasonably suspected, that this discrimination impedes commerce, why then (but only then!) Congress may act. Apparently, the Court would have us believe that the Founders granted the federal government authority to enact all manner of social legislation—provided only that it is good for business.

An analysis this cynical ought to suggest that the Court’s “interpretation” of the commerce clause is an expedient fabrication and that the clause was never meant to serve as backdoor authority for social legislation. No such luck.

The New Deal

The commerce clause became the carte blanche for social legislation through a series of cases upholding New Deal legislation in the 1930s and 1940s. In those cases the Supreme Court interpreted the clause as permitting Congress not just to regulate commerce (actual interstate trade in goods and services), but also to regulate anything that had a “substantial effect” on commerce. The watershed case which held that Congress could regulate purely private, individual, and noncommercial conduct was Wickard v. Filburn (1942).

In its simplest terms, Wickard held that Congress had authority under the interstate commerce clause to prohibit Filburn, the owner of a small farm, from growing, storing, and consuming his very own wheat on his very own property. For this reason, it is often selected by libertarians (and occasionally conservatives) as a patent illustration not only of the Supreme Court’s egregious failure to uphold the Constitution, but also of the now nearly unlimited scope of congressional power.

Yet a close reading of the case redirects attention away from the Supreme Court as the villain responsible for the loss of limited government, and reveals more precisely the reason for that loss. More troubling still, a close analysis of Wickard indicates why term limits, balanced budgets, prohibitions on unfunded mandates, or similar institutional devices will not re-establish limited government, and points to the daunting nature and magnitude of the reform necessary to limit government power.

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The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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