Commentary

Jon Roland

This is the second of two key cases decided in 2000 that follow up on and emphasize the significance of the 1995 decision in U.S. v. Lopez, 514 U.S. 549, the first being U.S. v. Morrison, Docket 99-5, which signal the dismantling of the efforts by successive national administrations since 1937 to seize police powers under the alleged authority of the Commerce Clause. In Morrison, the court overturned a statute allowing a citizen to seek civil damages for a crime for which the state had criminal jurisdiction, under the alleged authority of both the Commerce Clause and the 14th Amendment, but the court, by a bare 5-4 majority, took the position that rape of a civilian does not have a significant effect on interstate commerce, and that the 14th Amendment only authorizes federal action against actions by state agents. In this case, Jones, a now unanimous court strikes down a federal statute against arson (within state territory), for the limited case of a private residence, which they hold does not have a significant effect on interstate commerce, and thus does not meet the established standard for considering a federal statute to be authorized under the Commerce Clause, but Justices Thomas and Scalia send a signal in their brief concurring opinion that they would not support the statute for a commercial building, either.

Each of these cases came to the Supreme Court based on argument that cited Lopez, thus showing the significance of that case. These cases now provide precedents on which the entire gamut of federal criminal cases based on an expansive interpretation of the Commerce Clause are now subject to challenge, and is likely to lead to a flood of cases, some of which will make it to the Supreme Court, especially if the next president fills vacancies with justices whose philosophies are similar to those of Justices Thomas and Scalia. That makes the outcome of the next election more important than any election since 1932. Enough such decisions and the federal courts may begin to unravel the entire New Deal.

The next step is likely to be to grant certiorari on a criminal case involving a commercial building. That would open the door for an appeal of the conviction of Timothy McVeigh on grounds of a lack of federal jurisdiction, since the Murrah Building in Oklahoma City did not stand on territory ceded to the exclusive legislative jurisdiction of Congress under Art. I Sec. 8 Cl. 17, and thus was only a commercial building. That would leave the question of whether killing a federal agent has a substantial effect on interstate commerce. Eventually, the Court might get to the point where they maintain that the power delegated under the Commerce Clause only applies to commerce itself, and not to anything that has a substantial effect on it. That would lay the basis for excluding farming, fishing, mining, manufacturing, retail trade, possession, and use of anything. They might also eventually recognize that the original understanding of "commerce" only included transfers of ownership of commodities, and not services or information, and does not authorize criminal penalties, only civil penalties. Eventually, it might overturn the wrong precedents in McCullogh v. Maryland, 17 U.S. 316 (1819) and Gibbons v. Ogden, 22 U.S. 1 (1824).

The problem, however, is that even under a Republican administration, based on previous performance, Congress is likely to enact more unconstitutional federal criminal legislation faster than than the federal courts can strike them down. The Supreme Court can't do it all by itself. It needs the support of the people for a return to strict compliance with the Constitution according to the interpretative standards of Jefferson and Madison.