Are there limits to congressional power?
by Jeff Jacoby
The Boston Globe
November 15, 1994
ALFONSO LOPEZ BROKE THE LAW, no question.
When the 12th-grader brought a .38 caliber handgun to his San Antonio high school on March 10, 1992, he violated the federal Gun-Free School Zones Act of 1990. That law makes it illegal "for any individual knowingly to possess a firearm at a place that the individual knows ... is a school zone."
Lopez could have been prosecuted under Texas law, which also bans guns from school zones. But he was charged and convicted under the federal statute and sentenced to six months in prison. Open-and-shut.
Yet Lopez appealed. His case is now before the U.S. Supreme Court. The justices heard oral arguments in United States vs. Lopez on Nov. 8. How they decide the case might have a more explosive impact on the future of Congress than the midterm elections that took place the same day.
For the question in this case isn't whether Lopez broke the Gun-Free School Zones Act. The question is: Did Congress have the power to pass that law in the first place?
In an era when Congress makes laws on every conceivable subject, many Americans forget that the federal government was never meant to have broad, sweeping control over our lives. Strict limits on congressional power lay at the very core of the arrangement created by the Constitution's framers.
In Federalist No. 45, James Madison stressed that "the powers delegated by the proposed Constitution to the federal government are few and defined." The language of the Constitution makes that clear. Article I, Section 1 begins: "All legislative powers herein granted shall be vested in a Congress ..." Not all powers, period. Congress can exercise only the powers "herein granted" -- those specifically enumerated in the Constitution.
Article I, Section 8 enumerates them. It authorizes Congress, among other things, to collect taxes, to declare war, to coin money, to standardize weights and measures, to establish a postal system, to grant patents and copyrights, to raise an army, and -- in the language of the commerce clause -- "to regulate Commerce with foreign Nations, and among the several States." Important, yes. But far from all-encompassing. Nothing in there about local crime, for example, or public schools, or children's safety. Those issues, like most others, were to be left to the states.
The Bill of Rights drives that point home.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States" -- this is the 10th Amendment -- "are reserved to the States respectively, or to the people."
Comes now Alfonso Lopez and asks: Where does the Constitution say Congress can ban firearms in a school zone?
Most lawyers would point to the commerce clause, which for more than 50 years has been treated as a federal catch-all entitling Congress to control almost anything. This cynical interpretation is a ruse. It has transformed a constitutional brake on federal power -- the narrow authority "to regulate commerce ... among the several states" -- into an accelerator of federal power.
Until the mid-1930s, the judiciary was faithful to the framers' system of limited central government. When Congress passed laws overstepping its bounds, the courts struck them down.
But after the Supreme Court ruled much of Franklin Delano Roosevelt's early New Deal legislation unconstitutional, FDR retaliated. He threatened to "pack" the court by adding six new members. The justices, intimidated, caved in. Since then, federal judges have allowed the Commerce Clause to be invoked not only to regulate interstate commerce but to regulate almost anything, so long as somewhere, somehow, it has some contact with interstate commerce.
The power to regulate commerce has become the excuse Congress uses when it actually wants to regulate something else.
The result has been a vast increase in federal control and a sharp reduction in the freedom of states to decide things for themselves. The national government dominates everything. Washington has become bloated, arrogant, overrun with parasites -- exactly what the framers feared most.
What makes the Lopez case important is that the Gun-Free School Zones Act has no link to interstate commerce at all. The government didn't claim that Lopez's firearm had ever moved in interstate commerce. The law itself doesn't refer to the Commerce Clause. If this law can be upheld as an exercise of the federal commerce power, then any law can, and the doctrine of enumerated powers -- the central pillar of the framers' vision -- would be dead.
The Court of Appeals, unwilling to gouge the heart out of the Constitution, struck down the law. The Supreme Court should affirm that decision.
Not just because the states are capable of banning guns near schoolyards on their own (as Texas does). But because in Lopez, the justices have an opportunity to begin restoring the Constitution's most important restraint. The Founders built high constitutional walls to keep Congress under control. Fifty years ago a weak Supreme Court let those walls be breached. The result is a federal government run amok -- powerful, ravenous, and disdained by the people.
(Jeff Jacoby is a columnist for The Boston Globe.)
Related Topics: Legal and Judicial Issues, Liberty and Government Power
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