United States v. Lopez Was the First Commerce Clause Limit Since the New Deal

Imagine telling James Madison that Congress had the power to regulate a teenager's gun in a classroom because a hamburger somewhere once crossed a state line. He would ask what you meant by "regulate," what you meant by "commerce," and, after a pause, where you had hidden the Tenth Amendment.

That is the question the Supreme Court finally asked out loud in 1995. For nearly sixty years it had not. Congress had pointed at the Commerce Clause the way a magician points at a hat, and the Court had politely agreed that a rabbit could come out of it.

The text and the structure

Article I, Section 8, Clause 3 gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Read it slowly. Three kinds of commerce are named, and the middle one is commerce "among the several States." That is not commerce that merely touches a state, or tickles it, or makes it nervous. It is commerce among the States, the traffic that crosses borders.

Now read the Tenth 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." And Madison, in Federalist 45, explained the design in a sentence that every member of Congress should be made to copy out: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Few and defined. Hold on to those three words, because the history of the Commerce Clause is the history of how they were stretched until they snapped.

How the clause grew

Chief Justice Marshall read the clause broadly in Gibbons v. Ogden (1824), where it reached navigation among the states, but he also said that commerce which is completely internal to a state is for the state to regulate. For a century that boundary held in some form. The Court distinguished commerce from manufacturing and agriculture, which were seen as production rather than trade, and struck down some of the early New Deal measures on that basis, including the sick-chicken case of 1935 and the coal-industry statute the next year.

Then came 1937. After the Court-packing threat, the Court upheld the National Labor Relations Act in NLRB v. Jones & Laughlin Steel, holding that labor disputes in a steel company that operated across state lines could affect interstate commerce. Five years later came Wickard v. Filburn (1942), the case every first-year law student remembers. Filburn, an Ohio farmer, grew wheat above his federal quota for use on his own farm. The Court held Congress could regulate it, because if many farmers did the same, the total would affect the national wheat market. Grow it, feed it to your own chickens, and you were in interstate commerce.

From 1937 to 1995, no federal statute lost on commerce grounds. Not one. For nearly sixty years, the clause worked like a one-way valve: power in, nothing out.

Alfonso Lopez and the Gun-Free School Zones Act

In March 1992, Alfonso Lopez Jr., a twelfth-grader at a high school in San Antonio, Texas, arrived at school carrying a concealed .38 caliber handgun and five bullets. He was caught. Texas initially charged him under state law, then dropped those charges when federal agents filed their own, under the Gun-Free School Zones Act of 1990. That law made it a federal crime knowingly to possess a firearm in a place the person knew, or had reasonable cause to believe, was a school zone.

Notice the structure of the case. Texas had its own law against this. The question was never whether guns in schools are dangerous. They are. The question was whether the federal government had the enumerated power to make a crime of it, or whether it was borrowing authority that belongs to the States, in a field where the States were already acting.

The district court convicted Lopez. The Fifth Circuit reversed, holding the act beyond Congress's commerce power. The Supreme Court agreed to hear the case.

The Court's opinion

On April 26, 1995, the Court affirmed, 5 to 4. Chief Justice William Rehnquist wrote for the majority, joined by Justices O'Connor, Scalia, Kennedy and Thomas.

He began where the Constitution begins: "We start with first principles. The Constitution creates a Federal Government of enumerated powers." Then he organized three decades of precedent into three categories of activity Congress may regulate under the Commerce Clause:

1. The channels of interstate commerce, such as highways, waterways and air traffic.
2. The instrumentalities of interstate commerce, and persons or things in interstate commerce, even when the threat comes only from intrastate activity.
3. Activities that substantially affect interstate commerce.

The gun-free school zone statute fit neither of the first two. The government's argument therefore rested on the third. Its reasoning ran like this: guns in schools cause violent crime, violent crime raises insurance costs and discourages travel to unsafe areas, and a poorly educated population reduces national economic productivity. Therefore the possession of a gun in a school zone substantially affects interstate commerce.

Rehnquist's answer was that this proves too much. If Congress may regulate whatever bears on the economy through chains of this kind, there is nothing left that Congress cannot regulate. Education, family law, crime: all of it affects the economy somewhere. To accept the government's reasoning, he wrote, required the Court to pile inference upon inference in a way that would convert congressional authority under the Commerce Clause into a general police power of the sort retained by the States.

He added a pair of practical observations. The statute had no jurisdictional element, no requirement that the gun had moved in or affected interstate commerce, that would ensure a case-by-case connection. And it was a criminal statute, which has nothing to do with commerce, however broadly defined. The Court did not strike down a regulation of economic activity. It struck down a regulation of something that was not economic activity at all.

Thomas goes to the root

Justice Clarence Thomas joined the majority and wrote a separate concurrence that is, for a student of the text, the most interesting opinion in the case. His argument was that the "substantial effects" test itself had drifted far from the original meaning of the clause.

The word "commerce," he argued, meant trade and exchange in the Framers' time: the buying, selling and transporting of goods. It did not mean every economic activity, and manufacturing and agriculture were commonly distinguished from it. That is why Article I, Section 8 lists separate powers elsewhere. If commerce included everything that affects the economy, he argued, the rest of Congress's enumerated powers would be redundant, and the list would be a decoration.

He also said the Court should be willing, in an appropriate case, to reconsider the substantial-effects test. Thomas was not writing for a majority. But the concurrence was a map to a different constitutional terrain, one where the Commerce Clause meant trade, and a good deal of federal law would have to be justified on other grounds.

The dissents, fairly stated

Justice Stephen Breyer wrote the principal dissent, joined by Justices Stevens, Souter and Ginsburg. State it at its strongest, because it is a good argument.

Breyer said the question was not whether guns in schools in fact reduce commerce, but whether Congress could rationally have concluded that they do. Violent crime in and around schools, he argued, damages education. Education is increasingly the foundation of economic productivity. Employers look for educated workers and may locate where they live. A modern economy is national, and the Court should defer to Congress's reasonable judgment about such links, as it had done since 1937.

What is wrong with this? Three things.

1. It has no stopping point. Breyer's chain works for any subject. If a school's educational quality affects commerce, so does a school's curriculum, its lunch menu and its dress code. A theory of enumerated powers that cannot say what falls outside them is not a theory of enumerated powers.
2. It reads "among the several States" out of the text. The clause says "among," not "affecting." The Court's job is to interpret the Constitution as a grant of limited power, and a reading that swallows the limits cannot be right.
3. It makes federalism a courtesy. The Framers did not leave the States their authority on the sufferance of Congress's sense of economic effects. The reserved powers are reserved. If Congress decides case by case whether a subject is economic enough, the Tenth Amendment is a polite suggestion.

None of this means Breyer was acting in bad faith. He was following a line of precedent that began in 1937. But precedent that departs from the text does not become the text by getting old.

What the Court did next

Lopez was not an isolated decision, and it did not stand for long as the sole example. Five years later, in United States v. Morrison (2000), the Court struck down a provision of the Violence Against Women Act that gave victims of gender-motivated violence a federal civil remedy. Rehnquist again wrote for a 5-to-4 majority, and the logic was the same: gender-motivated violence is not economic activity, and the chain of effects the government relied on would justify federal regulation of almost anything. The case grew out of a lawsuit by Christy Brzonkala against two Virginia Tech football players. The Court's holding did not say the underlying conduct was unimportant. It said the Constitution assigns the remedy to the States.

Then came the limit on the limit. In Gonzales v. Raich (2005), the Court held, 6 to 3, that Congress could apply the Controlled Substances Act to marijuana grown and used at home under California's medical-marijuana law. Justice Stevens wrote that the activity, in the aggregate, was part of a comprehensive regulatory scheme, and that Congress could rationally conclude that exempting it would leave a gap in the market. Justice Scalia concurred only in the judgment, resting on the Necessary and Proper Clause rather than the commerce power alone. Justice O'Connor dissented, joined by Chief Justice Rehnquist and in part by Justice Thomas, and Thomas wrote separately, returning to the theme of his Lopez concurrence: the federal power was being used to regulate something that was neither interstate nor commerce.

So Lopez drew a line, but it is a line with a gate in it. Where the activity is economic, or part of a larger scheme of economic regulation, the Court defers. Where it is not, as with gun possession or violent crime, the line holds. Congress responded to Lopez by amending the statute to cover guns that have moved in or otherwise affect interstate commerce, which is a jurisdictional element. That fix is a small example of how the Constitution is supposed to work: a court says "you went too far," and the legislature tries again within bounds.

Why the Constitution cares

I say it plainly: this is not about guns. It is not about marijuana. It is about who governs.

A national government that may do whatever it thinks wise will not stay confined to the gun in the classroom. The Framers saw this. They wrote the Constitution as a grant of limited authority and relied on enumeration to protect liberty. Madison called the division of power between two governments a double security for the rights of the people. A single state may serve as a laboratory, as Justice Brandeis wrote in a 1932 dissent, and they work only if the national government stays out of the lab.

A citizen in Texas who dislikes a gun law can vote out the legislature, call a state senator, or move across the river. A citizen who dislikes a federal law can write to a member of Congress who represents hundreds of thousands of people, one of 435 in the House, who share responsibility with a Senate and a President and an alphabet of agencies. Accountability falls with distance. That is the practical meaning of federalism, and the practical cost when it is lost.

Lopez is also a reminder that a limit on federal power is not a ban on a remedy. Texas could and did prosecute Lopez under its own law. Congress could use its real powers, taxing, spending, regulating interstate firearms trade. Nothing in the opinion left schools undefended. It said that the remedy belonged to the level of government that the Constitution assigned it to.

If you want to see where the same logic leads in the administrative state, read The Major Questions Doctrine Explained, From Tobacco to the Power Plants and The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies. For the background on how courts read their own limits, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not, and for the human side of this very case, see How a Texas student's gun at school produced the Court's Commerce Clause limit. The method behind Thomas's concurrence is discussed in Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters, and the broader theme of unlimited federal reach appears in Article III Lets Congress Shape the Federal Courts, and It Rarely Does. You can also read the clause itself on the Constitution page.

The case in brief

1. The Commerce Clause gives Congress power over commerce "among the several States," which is trade across borders, not every activity that touches an economy.
2. From 1937 to 1995, no federal law fell on commerce grounds, and Wickard v. Filburn showed how far the doctrine would go.
3. In Lopez the Court sorted commerce power into channels, instrumentalities and substantial effects, and held that guns in a school zone were none of these.
4. The dissent's chain of effects has no stopping point, and a power with no stopping point is not an enumerated power.
5. Morrison extended the logic, Raich limited it, and Thomas's concurrence points to the deeper question of what "commerce" originally meant.

What you can do: read Article I, Section 8 on the Constitution page, then check which clause your member of Congress cites for the next bill they sponsor.