Supreme Court Decisions Every American Should Know About #2: U.S. v. Lopez

August 10, 2009

Today I continue my series of posts on Supreme Court decisions that, in my opinion, greatly redefined how a particular provision of the Constitution is interpreted or had a long-lasting impact on some area of public policy in the United States, for better or for worse.

This installment features the case United States v. Lopez, a 1995 case on the Commerce Clause which may have actually saved federalism in America from near-certain demise.


United States v. Lopez, 514 U.S. 549 (1995) put an end to the ridiculous expansion of Congressional power through the Commerce Clause that had occurred for the 50 years following the decision in Wickard v. Filburn (see my post on Wickard for more info). Justice Rehnquist, writing the opinion, put his foot down and said that there is a clear limit to what constitutes economic activity in interstate commerce within the meaning of the Commerce Clause.

Lopez was a high school senior who decided to bring a gun to school in 1992. He was charged with violating the Gun Free School Zone Act of 1990, U.S.C 922(q), in which Congress claimed authority to regulate gun posession in school zones (a criminal activity within the jurisdiction of state police powers). The government argued that since gun violence in schools had a negative aggregate effect on education, it would in turn have a negative effect on interstate commerce, and was thus within the definition of what Congress could regulate using the Commerce Clause.

The error of this logic is simple. Not only is possession of a gun in a school zone not an economic activity…it is also an activity which has nothing to with interstate commerce. If the Court had ruled in favor of the Government’s position, then it would have likely given Congress a carte blanche to regulate any activity whatsoever, no matter how remote the activity’s connection is to interstate commerce.

But as Rehnquist stated:

“To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action…but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of power does not presuppose something not enumerated…and that there will never be a distinction between what is truly national and what is truly local..This we are unwilling to do. “

Thus, instead of continuing the Court’s trend of deferring to Congress whenever the Government wished to regulate non-economic or non-interstate activities, Rehnquist and his fellow justices laid down a standard which would define more sharply what could be considered interstate commerce within the meaning of the Commerce Clause. These activities and things which Congress may regulate  are:

1. The channels of interstate commerce

2.Instrumentalities of interstate commerce, or persons or things in interstate commerce

3. Activities having a substantial affect on interstate commerce.

By sharply limiting how the Commerce Clause could be interpreted, the Court essentially prevented the demise of federalism. Decades of federal encroachment on state police powers were about to come to an end. As Rehnquist stated in the opinion, had the Court accepted the Government’s arguments, it would have validated a widely held belief that there was no thing, no activity, and no person which Congress did not have the power to regulate. But the Court ruled in favor of federalism, states’ rights and limited government, and those ideas are still alive–barely, but nonetheless still alive.

You can read the full text of the majority opinion here.



  1. This is a libertarian website, but you seem to be very pro-state’s rights and anti-national government powers. Yet, when looking at the history of our Republic, it has consistently been the Federal Government’s usurpation of state rights that has protected the rights of the individual the greatest.

    Chief Justice John Marshall said it best when he said (and I am paraphrasing) that sovereignty lies with the people, and the Constitution is the manifestation of the will of the people. Recall that until the passage of the 14th Amendment the States consistently did things to their citizens that the Bill of Rights prohibited (it had been held that the Bill of Rights limited the federal government, and not the states) and that the passage of the 14th Amendment combined with the powers of the commerce clause (art 1 sec 8) actually put a check on the and the States and their actions, many of which were repugnant to federal constitutional protections and repugnant to basic human rights.

    This erosion of state rights actually was a good thing when looked at from a libertarian perspective. Remember that until the late 1960’s, it was not “State’s rights” that were being infringed on, but the “right for states to discriminate”. The forced desegregated of the south lead to the euphemistic “state’s rights” battle cry. I think it can safely be said that the usurpation of the “state’s right” to discriminate increased the general welfare of all people in the United States.

    As to federalism and limited government, the natural argument against yours is that before the seemingly limitless usage of the commerce clause and the 14th Amendment, our limited federal government allowed the states limitless power over the individual.

    I would think that between the inherent evils of all governments, when having to choose between a government that protects the individual (the federal government) and a government that oppresses an individual (the many states), the preferred outlet would be the strong National Government.

    How can you, as a libertarian, reconcile so much history of the federal government protecting individual liberties, with the view you are promulgating, a view that runs contrary to history by holding that it is when the states are unchecked by federal power that Americans have the greatest individual freedom?

    That all being said, I have read a number of your most influential Supreme Court cases, and I agree with many of your selections, though I think that a greater historical and constitutional analysis of all of them (especially Wickard) would do you (a budding libertarian) a great deal of good and would be a tremendous service to your readers. Keep fighting the good fight!

    • *my reference to article 1 section 8 turned into Article 1 Section smiley face. That was unintended and I have no idea how the text became that.

  2. I appreciate your comments and think you have an excellent point.

    What I am interested in though is expansion or contraction of government powers through its own means. The Bill of Rights is an example of government limiting its control over individual lives. This is something that should happen at all levels of government, not just state and not just federal. The erosion of states’ rights through the commerce clause and selective incorporation that you talk about are good things, since they represent a limitation of government power in general. Though I believe the states should have power equal to or greater than the federal government, that power should end when it becomes intrusive in the ways that the federal Bill of Rights was intended to prevent in the first place. The 14th Amendment basically provided for the selective incorporation of libertarian principles as well as specific negative liberties against government encroachment, and for that I support it.

    Unlike some of the radical libertarian theorists I side with, I see a push towards the realization of liberty as a process that will be far more gradual in practical terms than a one-off revolution that solves all our problems instantaneously. I also believe that some reforms have to take place before others in order for the goals of libertarianism can actually be met (see my post on immigration reform for more clarification). Expanding the scope of the Bill of Rights and the definition of negative liberties is a step in the right direction because it limits government in general, whether it be state or federal. Though it will not be the end-all-be-all, and we still have much work to do.

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