10th Amendment Circumvented

This column, by Thomas Sowell,
appeared in the Fayetteville Observer, May 20, 2000

     Five years ago, there was great consternation when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. On May 15, 2000, there was great consternation when the Supreme Court ruled that rape was not interstate commerce. It is a sign of how twisted the law has become that each of these common sense rulings was by a narrow 5 to 4 majority.
     While the 1995 case involved a federal law against carrying a gun within a certain distance of a school, this year's case involved a woman suing two men for rape under a federal law. Neither case was about whether the law was good or bad. The cases were about Constitutional limits on the powers of the federal government--and all our freedoms depend upon maintaining those limits.
     The feds have been getting around the Constitutional limits by claiming to be regulating interstate commerce. But the Supreme Court didn't buy it.
     Rape is already illegal in every state. What the recent ruling said in effect was: You are in the wrong courthouse, lady. Sue those so-and-so's in the state courthouse down the street. State courts have the power to do everything up to and including executing people, so sending a case to a state court is no wrist slap.
     The familiar division of federal power among the president, Congress, and the Supreme Court was just the beginning. The Constitution also made it possible to impeach anybody who abused his power. In addition, the crucial 10th Amendment said that the federal government had the power to do only what it was specifically authorized to do, while the people or the states could do whatever they were not specifically forbidden to do.
     This was understood for about 150 years. Then, during the heady days of the New Deal, the federal government's power to regulate interstate commerce was stretched to include virtually anything that the politicians in Washington chose to regulate. In one case, the federal government's agricultural laws were applied to a man who grew his own food in his own backyard. The rationale was that he indirectly affected interstate commerce, because otherwise he might have bought food shipped across state lines.
     As the years went by, the interstate commerce clause of the Constitution was used repeatedly to circumvent the 10th Amendment. It was very clever--and very dangerous, because it took down the fence that the Constitution had put around federal power.
     Perhaps worse, people began to judge Supreme Court decisions by whether those decisions helped or hurt policies that those people favored or opposed. The whole idea that the court were there to maintain the framework of law--on which everyone's freedom depends--got lost in the shuffle.
     When the Supreme Court ruled in 1995 that carrying a gun near a school was not interstate commerce, there was consternation because it was the first time in decades that the high court had said that you couldn't just put "interstate commerce" on everything, like ketchup. Much of the outrage against this decision was based on people's thinking that the court was saying that it was OK to carry guns near a school.
     What was truly scary was that people could see no further than the particular law or policy right under their noses. Current shrill reactions to the Supreme Court's ruling that Congress had no authority to create a federal law against rape is equally scary. The court was not voting in favor of rape, but in favor of dealing with rapists in state and local courts--in order to maintain Constitutional limits on federal power.
     At the end of a century that has seen unspeakable horrors from the unbridled powers of governments, you would think that people would understand how important it is to keep federal powers from constantly expanding. Even in totalitarian countries, dictatorial powers did not suddenly appear overnight. The central government's powers just kept steadily growing, using claims to be meeting some particular need or crisis--until, finally, freedom was all gone.

     Sowell is a syndicated columnist. Readers may write to him at Creators Syndicate, 5777 West Century Blvd., Suite 800, Los Angeles, CA 90045.