UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr. on Writ of Certiorari
to the United States Court of Appeals for the Fifth Circuit [April 26, 1995]
Justice Thomas, concurring.
The Court today properly concludes that the Commerce Clause does not grant
Congress the authority to prohibit gun possession within 1,000 feet of a school,
as it attempted to do in the Gun-Free School Zones Act of 1990, Pub. L. 101-647,
104 Stat. 4844. Although I join the majority, I write separately to observe that
our case law has drifted far from the original understanding of the Commerce
Clause. In a future case, we ought to temper our Commerce Clause jurisprudence
in a manner that both makes sense of our more recent case law and is more
faithful to the original understanding of that Clause.
We have said that Congress may regulate not only Commerce . . . among
the several states, U. S. Const., Art. I, 8, cl. 3, but also anything
that has a substantial effect on such commerce. This test, if
taken to its logical extreme, would give Congress a police power
over all aspects of American life. Unfortunately, we have never come to grips
with this implication of our substantial effects formula. Although we have
supposedly applied the substantial effects test for the past 60 years, we always
have rejected readings of the Commerce Clause and the scope of federal power
that would permit Congress to exercise a police power; our cases are quite clear
that there are real limits to federal power. See New York v. United States, 505
U. S. ___, ___ (1992) (slip op., at 7) ([N]o one disputes the proposition
that `[t]he Constitution created a Federal Government of limited powers')
(quoting Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); Maryland v. Wirtz, 392
U. S. 183, 196 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37
(1937). Cf. Chisholm v. Georgia, 2 Dall. 419, 435 (1793) (Iredell, J.) (Each
State in the Union is sovereign as to all the powers reserved. It must
necessarily be so, because the United States have no claim to any authority but
such as the States have surrendered to them). Indeed, on this crucial
point, the majority and Justice Breyer agree in principle: the Federal
Government has nothing approaching a police power. Compare ante, at 7-9 with
post, at 10-11.
While the principal dissent concedes that there are limits to federal power,
the sweeping nature of our current test enables the dissent to argue that
Congress can regulate gun possession. But it seems to me that the power to
regulate commerce can by no means encompass authority over mere
gun possession, any more than it empowers the Federal Government to regulate
marriage, littering, or cruelty to animals, throughout the 50 States. Our
Constitution quite properly leaves such matters to the individual States,
notwithstanding these activities' effects on interstate commerce. Any
interpretation of the Commerce Clause that even suggests that Congress could
regulate such matters is in need of reexamination.
In an appropriate case, I believe that we must further reconsider our
substantial effects test with an eye toward constructing a
standard that reflects the text and history of the Commerce Clause without
totally rejecting our more recent Commerce Clause jurisprudence.
Today, however, I merely support the Court's conclusion with a discussion of
the text, structure, and history of the Commerce Clause and an analysis of our
early case law. My goal is simply to show how far we have departed from the
original understanding and to demonstrate that the result we reach today is by
no means radical, see post, at 1 (Stevens, J., dissenting). I also
want to point out the necessity of refashioning a coherent test that does not
tend to obliterate the distinction between what is national and what is
local and create a completely centralized government. Jones &
Laughlin Steel Corp, supra, at 37.
At the time the original Constitution was ratified, commerce
consisted of selling, buying, and bartering, as well as transporting for these
purposes. See 1 S. Johnson, A Dictionary of the English Language 361 (4th ed.
1773) (defining commerce as Intercour[s]e; exchange of one thing for
another; interchange of any thing; trade; traffick); N. Bailey, An
Universal Etymological English Dictionary (26th ed. 1789) (trade or
traffic); T. Sheridan, A Complete Dictionary of the English Language (6th
ed. 1796) (Exchange of one thing for another; trade, traffick).
This understanding finds support in the etymology of the word, which literally
means with merchandise. See 3 Oxford English Dictionary 552 (2d
ed. 1989) (com-with; merci-merchandise). In fact,
when Federalists and Anti-Federalists discussed the Commerce Clause during the
ratification period, they often used trade (in its selling/bartering sense) and
commerce interchangeably. See The Federalist No. 4, p. 22 (J. Jay) (asserting
that countries will cultivate our friendship when our trade is
prudently regulated by Federal Government); id., No. 7, at 39-40 (A. Hamilton)
(discussing competitions of commerce between States resulting from
state regulations of trade); id., No. 40, at 262 (J. Madison)
(asserting that it was an acknowledged object of the Convention . . .
that the regulation of trade should be submitted to the general government);
Lee, Letters of a Federal Farmer No. 5, in Pamphlets on the Constitution of the
United States 319 (P. Ford ed. 1888); Smith, An Address to the People of the
State of New-York, in id., at 107.
As one would expect, the term commerce was used in
contradistinction to productive activities such as manufacturing and
agriculture. Alexander Hamilton, for example, repeatedly treated commerce,
agriculture, and manufacturing as three separate endeavors. See, e.g., The
Federalist No. 36, at 224 (referring to agriculture, commerce,
manufactures); id., No. 21, at 133 (distinguishing commerce, arts, and
industry); id., No. 12, at 74 (asserting that commerce and agriculture have
shared interests). The same distinctions were made in the state ratification
conventions. See e.g., 2 Debates in the Several State Conventions on the
Adoption of the Federal Constitution 57 (J. Elliot ed. 1836) (hereinafter
Debates) (T. Dawes at Massachusetts convention); id., at 336 (M. Smith at New
Moreover, interjecting a modern sense of commerce into the Constitution
generates significant textual and structural problems. For example, one cannot
replace commerce with a different type of enterprise, such as
manufacturing. When a manufacturer produces a car, assembly cannot take place
with a foreign nation or with the Indian Tribes.
Parts may come from different States or other nations and hence may have been in
the flow of commerce at one time, but manufacturing takes place at a discrete
site. Agriculture and manufacturing involve the production of goods; commerce
encompasses traffic in such articles.
The Port Preference Clause also suggests that the term commerce
denoted sale and/or transport rather than business generally. According to that
Clause, [n]o Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another. U. S. Const.,
Art. I, 9, cl. 6. Although it is possible to conceive of regulations of
manufacturing or farming that prefer one port over another, the more natural
reading is that the Clause prohibits Congress from using its commerce power to
channel commerce through certain favored ports.
The Constitution not only uses the word commerce in a narrower
sense than our case law might suggest, it also does not support the proposition
that Congress has authority over all activities that substantially affect
interstate commerce. The Commerce Clause does not state that Congress may
regulate matters that substantially affect commerce with foreign Nations,
and among the several States, and with the Indian Tribes. In contrast,
the Constitution itself temporarily prohibited amendments that would affect
Congress' lack of authority to prohibit or restrict the slave trade or to enact
unproportioned direct taxation. U. S. Const., Art. V. Clearly, the Framers could
have drafted a Constitution that contained a substantially affects
interstate commerce clause had that been their objective.
In addition to its powers under the Commerce Clause, Congress has the
authority to enact such laws as are necessary and proper to carry
into execution its power to regulate commerce among the several States. U. S.
Const., Art. I, 8, cl. 18. But on this Court's understanding of congressional
power under these two Clauses, many of Congress' other enumerated powers under
Art. I, 8 are wholly superfluous. After all, if Congress may regulate all
matters that substantially affect commerce, there is no need for the
Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin
money and fix the standard of weights and measures, cl. 5, or punish
counterfeiters of United States coin and securities, cl. 6. Likewise, Congress
would not need the separate authority to establish post offices and post roads,
cl. 7, or to grant patents and copyrights, cl. 8, or to punish Piracies
and Felonies committed on the high Seas, cl. 10. It might not even need
the power to raise and support an Army and Navy, cls. 12 and 13, for fewer
people would engage in commercial shipping if they thought that a foreign power
could expropriate their property with ease. Indeed, if Congress could regulate
matters that substantially affect interstate commerce, there would have been no
need to specify that Congress can regulate international trade and commerce with
the Indians. As the Framers surely understood, these other branches of trade
substantially affect interstate commerce.
Put simply, much if not all of Art. I, 8 (including portions of the Commerce
Clause itself) would be surplusage if Congress had been given authority over
matters that substantially affect interstate commerce. An interpretation of cl.
3 that makes the rest of 8 superfluous simply cannot be correct. Yet this
Court's Commerce Clause jurisprudence has endorsed just such an interpretation:
the power we have accorded Congress has swallowed Art. I, 8.
Indeed, if a substantial effects test can be appended to the
Commerce Clause, why not to every other power of the Federal Government. There
is no reason for singling out the Commerce Clause for special treatment.
Accordingly, Congress could regulate all matters that substantially
affect the Army and Navy, bankruptcies, tax collection, expenditures, and
so on. In that case, the clauses of 8 all mutually overlap, something we can
assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional
problem of coming close to turning the Tenth Amendment on its head. Our case law
could be read to reserve to the United States all powers not expressly
prohibited by the Constitution. Taken together, these fundamental textual
problems should, at the very least, convince us that the substantial
effects test should be reexamined.
The exchanges during the ratification campaign reveal the relatively limited
reach of the Commerce Clause and of federal power generally. The Founding
Fathers confirmed that most areas of life (even many matters that would have
substantial effects on commerce) would remain outside the reach of the Federal
Government. Such affairs would continue to be under the exclusive control of the
Early Americans understood that commerce, manufacturing, and agriculture,
while distinct activities, were intimately related and dependent on each other -
that each substantially affected the others. After all, items
produced by farmers and manufacturers were the primary articles of commerce at
the time. If commerce was more robust as a result of federal superintendence,
farmers and manufacturers could benefit. Thus, Oliver Ellsworth of Connecticut
attempted to convince farmers of the benefits of regulating commerce. Your
property and riches depend on a ready demand and generous price for the produce
you can annually spare, he wrote, and these conditions exist where
trade flourishes and when the merchant can freely export the produce of the
country to nations that will pay the highest price. A Landholder No. 1,
Connecticut Courant, Nov. 5, 1787, in 3 Documentary History of the Ratification
of the Constitution 399 (M. Jensen ed. 1978) (hereinafter Documentary History).
See also The Federalist No. 35, at 219 (A. Hamilton) ([D]iscerning
citizens are well aware that the mechanic and manufacturing arts furnish the
materials of mercantile enterprise and industry. Many of them indeed are
immediately connected with the operations of commerce. They know that the
merchant is their natural patron and friend); id., at 221 (Will
not the merchant . . . be disposed to cultivate . . . the interests of the
mechanic and manufacturing arts to which his commerce is so nearly allied);
A Jerseyman: To the Citizens of New Jersey, Trenton Mercury, Nov. 6, 1787, in 3
Documentary History 147 (noting that agriculture will serve as a source
of commerce); Marcus, The New Jersey Journal, Nov. 14, 1787, id., at 152
(both the mechanic and the farmer benefit from the prosperity of commerce).
William Davie, a delegate to the North Carolina Convention, illustrated the
close link best: Commerce, sir, is the nurse of [agriculture and
manufacturing]. The merchant furnishes the planter with such articles as he
cannot manufacture himself, and finds him a market for his produce. Agriculture
cannot flourish if commerce languishes; they are mutually dependent on each
other. 4 Debates 20.
Yet, despite being well aware that agriculture, manufacturing, and other
matters substantially affected commerce, the founding generation did not cede
authority over all these activities to Congress. Hamilton, for instance,
acknowledged that the Federal Government could not regulate agriculture and like
The administration of private justice between the
citizens of the same State, the supervision of agriculture and of other concerns
of a similar nature, all those things in short which are proper to be provided
for by local legislation, can never be desirable cares of a general
jurisdiction. The Federalist No. 17, at 106.
In the unlikely event that the Federal Government would attempt to exercise
authority over such matters, its effort would be as troublesome as it
would be nugatory. Ibid.
The comments of Hamilton and others about federal power reflected the
well-known truth that the new Government would have only the limited and
enumerated powers found in the Constitution. See, e.g., 2 Debates 267-268 (A.
Hamilton at New York convention) (noting that there would be just cause for
rejecting the Constitution if it would enable the Federal Government to alter,
or abrogate . . . [a state's] civil and criminal institutions [or] penetrate the
recesses of domestic life, and control, in all respects, the private conduct of
individuals); The Federalist No. 45, at 313 (J. Madison); 3 Debates 259
(J. Madison) (Virginia convention); R. Sherman & O. Ellsworth, Letter to
Governor Huntington, Sept. 26, 1787, in 3 Documentary History 352; J. Wilson,
Speech in the State House Yard, Oct. 6, 1787, in 2 id., at 167-168. Agriculture
and manufacture, since they were not surrendered to the Federal Government, were
state concerns. See The Federalist No. 34, at 212-213 (A. Hamilton) (observing
that the internal encouragement of agriculture and manufactures
was an object of state expenditure). Even before the passage of the Tenth
Amendment, it was apparent that Congress would possess only those powers herein
granted by the rest of the Constitution. U. S. Const., Art. I, 1.
Where the Constitution was meant to grant federal authority over an activity
substantially affecting interstate commerce, the Constitution contains an
enumerated power over that particular activity. Indeed, the Framers knew that
many of the other enumerated powers in 8 dealt with matters that substantially
affected interstate commerce. Madison, for instance, spoke of the bankruptcy
power as being intimately connected with the regulation of commerce.
The Federalist No. 42, at 287. Likewise, Hamilton urged that [i]f we mean
to be a commercial people or even to be secure on our Atlantic side, we must
endeavour as soon as possible to have a navy. Id., No. 24, at 157 (A.
In short, the Founding Fathers were well aware of what the principal dissent
calls `economic . . . realities.' See post, at 11-12 (Breyer, J.)
(citing North American Co. v. SEC, 327 U. S. 686, 705 (1946)). Even though the
boundary between commerce and other matters may ignore economic reality
and thus seem arbitrary or artificial to some, we must nevertheless respect a
constitutional line that does not grant Congress power over all that
substantially affects interstate commerce.
If the principal dissent's understanding of our early case law were correct,
there might be some reason to doubt this view of the original understanding of
the Constitution. According to that dissent, Chief Justice Marshall's opinion in
Gibbons v. Ogden, 9 Wheat. 1 (1824) established that Congress may control all
local activities that significantly affect interstate commerce,
post, at 1. And, with the exception of one wrong turn subsequently corrected,
this has been the traditiona[l] method of interpreting the
Commerce Clause. Post, at 18 (citing Gibbons and United States v. Darby, 312 U.
S. 100, 116-117 (1941)).
In my view, the dissent is wrong about the holding and reasoning of Gibbons.
Because this error leads the dissent to characterize the first 150 years of this
Court's case law as a wrong turn, I feel compelled to put the last
50 years in proper perspective.
In Gibbons, the Court examined whether a federal law that licensed ships to
engage in the coasting trade pre-empted a New York law granting a
30-year monopoly to Robert Livingston and Robert Fulton to navigate the State's
waterways by steamship. In concluding that it did, the Court noted that Congress
could regulate navigation because [a]ll America . . . has
uniformly understood, the word `commerce,' to comprehend navigation. It was so
understood, and must have been so understood, when the constitution was framed.
9 Wheat., at 190. The Court also observed that federal power over commerce
among the several States meant that Congress could regulate
commerce conducted partly within a State. Because a portion of interstate
commerce and foreign commerce would almost always take place within one or more
States, federal power over interstate and foreign commerce necessarily would
extend into the States. Id., at 194-196.
At the same time, the Court took great pains to make clear that Congress
could not regulate commerce which is completely internal, which is
carried on between man and man in a State, or between different parts of the
same State, and which does not extend to or affect other States. Id., at
194. Moreover, while suggesting that the Constitution might not permit States to
regulate interstate or foreign commerce, the Court observed that [i]nspection
laws, quarantine laws, health laws of every description, as well as laws for
regulating the internal commerce of a State were but a small part of
that immense mass of legislation . . . not surrendered to a general government.
Id., at 203. From an early moment, the Court rejected the notion that Congress
can regulate everything that affects interstate commerce. That the internal
commerce of the States and the numerous state inspection, quarantine, and health
laws had substantial effects on interstate commerce cannot be doubted.
Nevertheless, they were not surrendered to the general government.
Of course, the principal dissent is not the first to misconstrue Gibbons.
For instance, the Court has stated that Gibbons described the federal
commerce power with a breadth never yet exceeded. Wickard v. Filburn, 317
U. S. 111, 120 (1942). See also Perez v. United States, 402 U. S. 146, 151
(1971) (claiming that with Darby and Wickard, the broader view of the
Commerce Clause announced by Chief Justice Marshall had been restored). I
believe that this misreading stems from two statements in Gibbons.
First, the Court made the uncontroversial claim that federal power does not
encompass commerce that does not extend to or affect other
States. 9 Wheat., at 194 (emphasis added). From this statement, the
principal dissent infers that whenever an activity affects interstate commerce,
it necessarily follows that Congress can regulate such activities. Of course,
Chief Justice Marshall said no such thing and the inference the dissent makes
cannot be drawn.
There is a much better interpretation of the affect[s]
language: because the Court had earlier noted that the commerce power did not
extend to wholly intrastate commerce, the Court was acknowledging that although
the line between intrastate and interstate/foreign commerce would be difficult
to draw, federal authority could not be construed to cover purely intrastate
commerce. Commerce that did not affect another State could never be said to be
commerce among the several States.
But even if one were to adopt the dissent's reading, the affect[s]
language, at most, permits Congress to regulate only intrastate commerce that
substantially affects interstate and foreign commerce. There is no reason to
believe that Chief Justice Marshall was asserting that Congress could regulate
all activities that affect interstate commerce. See Ibid.
The second source of confusion stems from the Court's praise for the
Constitution's division of power between the States and the Federal Government:
The genius and character of the whole government seem to
be, that its action is to be applied to all the external concerns of the nation,
and to those internal concerns which affect the States generally; but not to
those which are completely within a particular State, which do not affect other
States, and with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government. Id., at 195.
In this passage, the Court merely was making the well understood point that
the Constitution commits matters of national concern to Congress
and leaves local matters to the States. The Court was not saying
that whatever Congress believes is a national matter becomes an object of
federal control. The matters of national concern are enumerated in the
Constitution: war, taxes, patents, and copyrights, uniform rules of
naturalization and bankruptcy, types of commerce, and so on. See generally U. S.
Const., Art. I, 8. Gibbons' emphatic statements that Congress could not regulate
many matters that affect commerce confirm that the Court did not read the
Commerce Clause as granting Congress control over matters that affect the
States generally. Gibbons simply cannot be construed as the principal
dissent would have it.
I am aware of no cases prior to the New Deal that characterized the power
flowing from the Commerce Clause as sweepingly as does our substantial effects
test. My review of the case law indicates that the substantial effects test is
but an innovation of the 20th century.
Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens
v. Virginia, 6 Wheat. 264 (1821), noted that Congress had no general
right to punish murder committed within any of the States, id., at 426,
and that it was clear that congress cannot punish felonies generally,
id., at 428. The Court's only qualification was that Congress could enact such
laws for places where it enjoyed plenary powers - for instance, over the
District of Columbia. Id., at 426. Thus, whatever effect ordinary murders, or
robbery, or gun possession might have on interstate commerce (or on any other
subject of federal concern) was irrelevant to the question of congressional
United States v. Dewitt, 9 Wall. 41 (1870), marked the first time the Court
struck down a federal law as exceeding the power conveyed by the Commerce
Clause. In a two-page opinion, the Court invalidated a nationwide law
prohibiting all sales of naphtha and illuminating oils. In so doing, the Court
remarked that the Commerce Clause has always been understood as limited
by its terms; and as a virtual denial of any power to interfere with the
internal trade and business of the separate States. Id., at 44. The law
in question was plainly a regulation of police, which could have
constitutional application only where Congress had exclusive authority, such as
the territories. Id., at 44-45. See also License Tax Cases, 5 Wall. 462, 470-471
(1867) (Congress cannot interfere with the internal commerce and business of a
State); Trade-Mark Cases, 100 U. S. 82 (1879) (Congress cannot regulate internal
commerce and thus may not establish national trademark registration).
In United States v. E. C. Knight Co., 156 U. S. 1 (1895), this Court held
that mere attempts to monopolize the manufacture of sugar could not be regulated
pursuant to the Commerce Clause. Raising echoes of the discussions of the
Framers regarding the intimate relationship between commerce and manufacturing,
the Court declared that [c]ommerce succeeds to manufacture, and is not a
part of it. Id., at 12. The Court also approvingly quoted from Kidd v.
Pearson, 128 U. S. 1, 20 (1888):
`No distinction is more popular to the common mind, or
more clearly expressed in economic and political literature, than that between
manufacture and commerce . . . . If it be held that the term [commerce] includes
the regulation of all such manufactures as are intended to be the subject of
commercial transactions in the future, it is impossible to deny that it would
also include all productive industries that contemplate the same thing. The
result would be that Congress would be invested . . . with the power to
regulate, not only manufactures, but also agriculture, horticulture, stock
raising, domestic fisheries, mining-in short, every branch of human industry.'
E. C. Knight, 156 U. S., at 14.
If federal power extended to these types of production comparatively
little of business operations and affairs would be left for state control.
Id., at 16. See also Newberry v. United States, 256 U. S. 232, 257 (1921) (It
is settled . . . that the power to regulate interstate and foreign commerce does
not reach whatever is essential thereto. Without agriculture, manufacturing,
mining, etc., commerce could not exist, but this fact does not suffice to
subject them to the control of Congress). Whether or not manufacturing,
agriculture, or other matters substantially affected interstate commerce was
As recently as 1936, the Court continued to insist that the Commerce Clause
did not reach the wholly internal business of the States. See Carter v. Carter
Coal Co., 298 U. S. 238, 308 (1936) (Congress may not regulate mine labor
because [t]he relation of employer and employee is a local relation);
see also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495,
543-550 (1935) (holding that Congress may not regulate intrastate sales of sick
chickens or the labor of employees involved in intrastate poultry sales). The
Federal Government simply could not reach such subjects regardless of their
effects on interstate commerce.
These cases all establish a simple point: from the time of the ratification
of the Constitution to the mid-1930's, it was widely understood that the
Constitution granted Congress only limited powers, notwithstanding the Commerce
Clause. Moreover, there was no question that activities wholly separated from
business, such as gun possession, were beyond the reach of the commerce power.
If anything, the wrong turn was the Court's dramatic departure in
the 1930's from a century and a half of precedent.
Apart from its recent vintage and its corresponding lack of any grounding in
the original understanding of the Constitution, the substantial effects test
suffers from the further flaw that it appears to grant Congress a police power
over the Nation. When asked at oral argument if there were any limits to the
Commerce Clause, the Government was at a loss for words. Tr. of Oral Arg. 5.
Likewise, the principal dissent insists that there are limits, but it cannot
muster even one example. Post, at 10-11. Indeed, the dissent implicitly concedes
that its reading has no limits when it criticizes the Court for threaten[ing]
legal uncertainty in an area of law that . . . seemed reasonably well settled.
Post, at 17-18. The one advantage of the dissent's standard is certainty: it is
certain that under its analysis everything may be regulated under the guise of
the Commerce Clause.
The substantial effects test suffers from this flaw, in part, because of its
aggregation principle. Under so-called class of activities
statutes, Congress can regulate whole categories of activities that are not
themselves either interstate or commerce. In
applying the effects test, we ask whether the class of activities as a whole
substantially affects interstate commerce, not whether any specific activity
within the class has such effects when considered in isolation. See Maryland v.
Wirtz, 392 U. S., at 192-193 (if class of activities is `within the reach
of federal power,' courts may not excise individual applications as
trivial) (quoting Darby, 312 U. S., at 120-121).
The aggregation principle is clever, but has no stopping point. Suppose all
would agree that gun possession within 1,000 feet of a school does not
substantially affect commerce, but that possession of weapons generally (knives,
brass knuckles, nunchakus, etc.) does. Under our substantial effects doctrine,
even though Congress cannot single out gun possession, it can prohibit weapon
possession generally. But one always can draw the circle broadly enough to cover
an activity that, when taken in isolation, would not have substantial effects on
commerce. Under our jurisprudence, if Congress passed an omnibus substantially
affects interstate commerce statute, purporting to regulate every aspect
of human existence, the Act apparently would be constitutional. Even though
particular sections may govern only trivial activities, the statute in the
aggregate regulates matters that substantially affect commerce.
This extended discussion of the original understanding and our first century
and a half of case law does not necessarily require a wholesale abandonment of
our more recent opinions. It simply reveals that our substantial effects test is
far removed from both the Constitution and from our early case law and that the
Court's opinion should not be viewed as radical or another wrong
turn that must be corrected in the future. The analysis also suggests
that we ought to temper our Commerce Clause jurisprudence.
Unless the dissenting Justices are willing to repudiate our long-held
understanding of the limited nature of federal power, I would think that they
too must be willing to reconsider the substantial effects test in a future case.
If we wish to be true to a Constitution that does not cede a police power to the
Federal Government, our Commerce Clause's boundaries simply cannot be defined
as being `commensurate with the national needs' or
self-consciously intended to let the Federal Government `defend itself
against economic forces that Congress decrees inimical or destructive of the
national economy.' See post, at 12-13 ) Breyer, J., dissenting) (quoting
North American Co. v. SEC, 327 U. S. 686, 705 (1946)). Such a formulation of
federal power is no test at all: it is a blank check.
At an appropriate juncture, I think we must modify our Commerce Clause
jurisprudence. Today, it is easy enough to say that the Clause certainly does
not empower Congress to ban gun possession within 1,000 feet of a school.