Guns and Commerce in Dialectical Perspective

Brigham Young University Journal of Public Law

Volume 11|Issue 2

5-1-1997

Guns and Commerce in Dialectical Perspective

Thomas Lundmark

Article 3

Part of theCommercial Law Commons, and theSecond Amendment Commons

Guns and Commerce in Dialectical Perspective

Thomas Lundmark •

The philosophy of Hegel envisions a world-soul that can be known through the dialectical method of logic.1 The dialectical method of logic is founded upon the negation of contradictions or, said another way, the reconciliation of opposites. 2 According to this method, one concept or event (thesis) inevitably produces its opposite (antithesis). The tension between these opposites generates a new category (synthesis). This new category can be said to unify the opposites in a way that, in a sense, pre serves them while at the same time abolishes them, thereby avoiding their self-contradictoriness. 3

The world-soul animates world and national history, including the legal history reflected in constitutions, laws, and the acts of public institu tions4 such as courts. The sequence of dialectical logic is the same as the sequence of history. Thus history can be explained as a teleological pro cess aimed at unfolding the dialectical sequence of concepts and events. 5

In Hegelian terms, the Supreme Court's decision in Lopez v. United States6 marks the intersection of two dialectical progressions, one judicial

and one legislative. The frrst progression is the evolution of judicial construction on the reach of the interstate commerce clause7 as a source of federal legislative jurisdiction. Here the narrow thesis (buying and sell ing across state lines8 ) was replaced by its expansive antithesis (every thing is interstate commerce9 ) only to give way in Lopez to its synthesis (economic activity with a substantial interstate effect10 ). The second dia lectical progression is legislative. Federal gun control legislation has pro gressed from its original thesis (right to bear arms11 ) to an antithesis: a ban in all places on the sale of certain weapons (e.g., automatic weapons12 The resulting synthesis manifests itself in the five-day waiting period (temporary ban) for the purchase of all weapons (Brady Bil114

) or a ban of all weapons in certain places (e.g., school yards13

These two progressions (legislative and judicial) are themselves vari ations on the underlying theme of the evolution of federal-state balance. Orchestrated by state and federal legislatures, courts, politicians, and vot ers, the original foundational thesis (state sovereigntyl5 ) composed its theoretical opposite: New Deal legislation.16 The variety of federal and

state gun control laws and judicial interpretation is the cacophonous syn thesis of the discordant extremes of state and federal domination.

The discussion begins by tracing the legislative evolution of federal gun control measures (Part A-1 through Part A-3), culminating in a re flection on where the next legislative antithesis will likely sprout (Part A4). Attention is focused on three potential avenues of legislative advance ment: amendment to the constitution, passage of a gun control law re stricted to commerce, and employment of the congressional taxing or spending powers. Despite the availability of these avenues, the author concludes that the political forces that arouse legislative activity are too weak and diffuse to sire vigorous antithetical action by Congress in the near future, in part because handguns do not pose a threat to the vast ma jority of non-Black Americans.17

The discussion then tracks the dialectical development of judicial construction of the interstate commerce clause that gave birth to Lopez (Part B). The author sketches the judicial development in outline form to highlight the conceptual forces at work in forging the synthetic reasoning of Lopez (Part B-1 through Part B-3). The author then applies this reason ing to probe the constitutionality of other commerce clause enactments, such as those regulating the environment and governing families, to di vine the future of the judicial progression (Part B-4). The author per ceives the emergence of a synthesis that is weightier than Lopez and that might better be described as a historical progression buried on a deeper stratum. This is cognition of the value of localism, known in Europe as the principle of subsidiarity.18

The Lopez case raises the issue of the extent of the legislative power of the federal government of the United States. This power is delegated by article 1 section 1 of the Constitution to the Congress. This article of the Constitution also contains a catalogue of legislative powers, which include the powers to declare war, 19 to coin money,20 to operate post offi ces,21 to raise and support armies,22 to grant copyrights and patents,23 to

establish uniform bankruptcy rules, 24 to impose federal excise taxes, 25 to spend for the general welfare,26 to regulate citizenship matters,27 and to regulate foreign commerce and commerce between the states.Z8

In order to stress that the federal government-unlike the govern ments of the states-was a government of delegated powers, the Consti tution was amended with the Tenth Amendment in 179129 which consists of the tautological30 sentence: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."31

The spending power32 is probably the most important,33 at least since 1913 when, upon ratification of the Sixteenth Amendment, the Congress received power to levy income taxes.34 According to the spending power,

Congress may spend money for the general welfare: "The Congress shall have Power to lay and collect Taxes, Duties, Imports and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States."35 While many commentators,36 including the author,37 advocate rigorous review of federal inducements to the states under the spending clause, the Supreme Court accords Congress wide discretion, 38 contenting itself with a lax, four-part inquiry: (1) Does the inducement promote the general welfare; (2) Is it clear and unambiguous in what it requires and in the consequences from non-participation; (3) Is the in ducement related to a federal interest in particular national projects or programs; and (4) Does it avoid transgressing constitutional provisions that may provide an independent bar to the conditional grant of federal

funds. 39 Because of the laxity of this standard, Congress can, under the present state of judicial review, financially encourage all activity which it rationally believes to be in the national interest. 40

A. Right to Bear Arms and the lOth Amendment: The Thesis

An explication of the federal regulation of firearms can begin with this proclamation of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. "41 While commentators are almost42 universal in opining that the right to bear arms is not a personal right but rather a right enjoyed by each state to arm a militia,43 one cannot dispute the fact that there was no federal regulation of firearms for over a century. Tlms it seems warranted for the purposes of historic analysis to identify the thesis (lack of regulation) with the Second Amendment's right to bear arms. This being done, it would seem that minor, indirect incursions into the right to bear arms-those that do not challenge the essence or validity of the right-should be seen as recapitulations or even revalidations of the right (thesis) rather than as contradictions to it. The National Firearms Act of 193444 should be viewed in this non-antithetical way, for it merely imposed a tax on the disposition of certain weapons.45 The Omnibus Crime Control and Safe Streets Act of 196846 also does not undermine the thesis (lack of regulation), for this legislation merely re quires a federal business perrnit to import, manufacture, and sell weapons and munitions, even if the business is not involved in interstate com merce.47

B. Prohibitions: The Antithesis

The antithesis to firearm freedom finally emerged with the 1988 ma chine gun banning amendment to the Firearm Owners' Protection Act48 and with the federal49 assault weapons ban. 50 Both the machine gun and assault weapons bans qualify for consideration as antithetic legislative pronouncements because they contradict the thesis that an individual's right to possess a 11rearm is absolute.

The Supreme Court has not directly ruled on the constitutionality of

the machine gun prohibition. However, in 1991 the Supreme Court re fused discretionary review in the case of Farmer v. Higgins.51 That case concerned a plaintiff who wanted to construct a machine gun himself, but who was denied a permit to do so by the appropriate federal agency, the Bureau of Alcohol, Tobacco and Firearms. From the denial of review one might conclude that the Supreme Court would uphold the constitutional ity of the machine gun prohibition if confronted with the question di rectly. In any event, both the machine gun and assault weapon bans should survive challenge under Lopez because the bans against ownership are coupled with prohibitions against disposition and acquisition, which are commercial transactions.

C. A Waiting Period: The Synthesis

A form of synthesis between the thesis (absolute freedom) and antith esis (prohibition) is seen in the provisions of the Brady Bil1.52 Enacted in 1993, the Brady Bill requires a five-day waiting period before buying a weapon. 53 In Hegelian terms, this waiting-period approach can be thought of as the unification of opposites (absolute freedom and prohibition) in a

way that, in a sense, preserves them while at the same time abolishing them. 5

While the Lopez rationale does not threaten the constitutionality of the Brady Bill, the law is nevertheless unconstitutional for another rea son. Under our system of federalism, the federal legislature should not be able to give orders to the state parliaments and governments and in that way turn them into agencies of the federal government. 55 A monetary in centive would, however, be constitutional. It would encourage, rather than require, the states to join a nationwide system of background checks. 5

Another bill presently pending before the Congress also possesses the synthetic quality of the Brady Bill because it too combines the opposites of freedom and prohibition. This is the Gun Violence Prevention Act,57 also referred to as Brady II. If enacted, this bill would require that each purchaser of a weapon obtain a license. 58 If this weapons-licensing pro gram were to be financed by the federal government, then it would be constitutional as an expenditure for the common good under Congress's spending power.59 Incentives, such as tinancial support for implementa tion and enforcement, could be offered to the states to encourage them to enact new or extend existing legislation. However, the bill takes another tack: it would require the states to establish and enforce the weapons-li censing program with no incentives. As such, the law would be unconsti tutional under constitutional interpretation predating the Lopez decision. 60

D. Future of the Legislative Progression

Hegel's theory implies that those who take the first steps in creating a new social order cannot predict what future society will be like because

they lack knowledge of the spirit necessary to understand how the new society will actualize the nature of the world-soul.61 Nevertheless, we still might be able to identify, for instance, the main social problems in the present order and the social movement that will bring the new order into being.62

The magnitude of the gun control problem-and, indeed, whether or not it really is a problem-is subject to serious controversy. The contro versy has nothing to do with the Second Amendment's right to bear arms, but rather with the question whether the flood of weapons can be stopped and whether doing so will have any appreciable effect on the rates of vio lent crime, accidental homicide, and murder and manslaughter.

Many Americans are alarmed by the fact that the American murder and manslaughter rate is twice that of France and Germany; yet these rates are, in turn, twice the rate in Great Britain,63 and people in France and Germany do not seem to be alarmed. The ease of acquisition of a weapon does not entirely explain these statistical differences. On the other hand, a gunshot is certainly more life-threatening than, say, a knife wound. If handguns were less readily available, one would expect a re duction in gun-inflicted injuries and fatalities.

Some of the American ambivalence64 toward gun control regulation is undoubtedly attributable to the fact that the vast majority of Americans are not personally affected by the high murder and manslaughter rates. The simple fact is that the murder and manslaughter rates among the non Black population are not particularly high. Approximately fifty percent of all victims of murder and manslaughter are Black. 65 Further, murder and manslaughter are often associated with drug dealing, with which the vast majority of the population has no contact. In other words, for the vast ma jority of the population, the risk of being the victim of murder or man slaughter is quite low. Traffic accidents, HIV, and suicide all claim more victims than crime.66 Statistically, one's chances of reaching old age are

just as good in the United States as in Europe,67 and this despite floods, earthquakes, and tornadoes.

If Congress wished to revive the Gun-Free School Zones Act or enact more expansive gun control legislation, such as in England,68 it could fol low one of three paths. First, it could recommend to the states that the Constitution be amended to give the Congress legislative jurisdiction to enact the law. Second, Congress could fit the legislation into one of the three Lopez categories (channels of commerce, instrumentalities, or sub stantial effect of economic activity on interstate commerce). Third, Con gress could entice the states into enacting legislation by offering incen tives. These three possibilities are addressed in order.

1. Constitutional Amendment

To amend the United States Constitution requires first that both houses of Congress, by two-thirds majority, vote to recommend an amendment. The amendment takes effect upon ratification by the legis latures of three-fourths of the states. 69

Three precedential amendments to the United States Constitution, all of which followed unpopular decisions of the United States Supreme Court, might be mentioned. The infamous case of Dredd Scott v. Sand for~0 concerned a federal law which prohibited slavery in certain areas. The Supreme Court determined that the Congress lacked jurisdiction to enact the law, because slavery was a municipal matter, i.e., one for the states: the federal government had no jurisdiction. This decision of the United States Supreme Court was "reversed" through the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, which ban slavery and expressly grant Congress jurisdiction to enact implementing legisla-

tion.71 In a case from 1895 the Supreme Court declared the federal taxa tion of incomes to be unconstitutiona1.72 The federal income tax amend ment (Sixteenth Amendment) was ratified in 1913, relieving the consti tutional infirmity. The most recent example is a case73 ruling unconstitu tional a law which gave 18-year-olds the right to vote in state and local (in addition to federal) elections. That law was refashioned into the Twenty-Sixth Amendment, ratified by the states in 1971.

For many reasons, the likelihood of a constitutional amendment for gun control legislation, or even to grant the federal government a general police power, is quite low. Banning guns on school grounds or elsewhere does not have the moral legitimacy or federal urgency that, say, banning slavery did. Unlike with the income tax amendment, the federal govern ment would not be significantly benefitted by amendment to allow gun control legislation or to fight crime generally. In contrast to the IS-year old voting amendment, ownership of guns on school grounds and else where does not concern a basic democratic institution, such as voting.

2. Passage of a New Law, Restricted to Commerce

The Congress could also attempt to redraft the Gun-Free School Zones Act to fit into one of the three Lopez categories (channels of com merce, instruments of commerce, or substantial effect on interstate com merce).

tit into

the first category. To fit

Weapons are not channels of commerce, like hotels, and therefore do not into the second category (instruments), Congress might forbid the import and export of weapons between the states and forbid the possession of a weapon manufactured in another state or country. The mere possession of a weapon is not an eco nomic activity and therefore will not fit into the third category (substan tial effect of an economic activity on interstate commerce). On the other hand, the sale of a weapon74 is a commercial activity. Basing its legisla tion on the commerce clause, Congress could constitutionally forbid both the sale and acquisition of a handgun, as well as the possession of a hand gun with the intent to sell it, since these activities are closely related to

commerce. If the legislation sought a total weapons ban, then the prohibi tion against possession could probably be attached to the prohibition against sale, since a prohibition against sale would be practically unen forceable if it were not coupled with a prohibition against ownership.75 In other words, a federal prohibition against the ownership of weapons would probably be constitutional if it were coupled with a prohibition against sale.

3.

Incentive Programs

In order to realize a nationwide prohibition of guns on school grounds, Congress could concentrate on those few states which still do not have prohibitory provisions in their penal codes. As mentioned above, 76 numerous states-almost 40-already forbid the possession of weapons on school grounds. In order to encourage further legislative ac tivity, Congress could employ the spending power by offering incentives77 to ensure the cooperation of the states. The most famous ex ample of this "cooperative federalism"78 is probably the uniform mini mum drinking age.79 It is necessary for the Congress to offer incentives because Congress lacks the power to dictate legislation to the state legis latures.80

According to the text of the commerce clause, the federal power over commerce extends to international commerce, to interstate commerce, and to commerce with the Indian tribes. 81 Power to regulate intrastate commerce therefore rests textually with the states. 82

A. Early Commerce Clause Jurisprudence: The Thesis

During the nineteenth century, federal courts employed the commerce clause, if at all, when the law of a single state was claimed to interfere with the interstate transportation and commerce in goods, for, stated gen erally, the commerce clause prohibits states from imposing unreasonable burdens upon interstate commerce.

In order to decide these cases, federal judges had to define what was meant by "commerce" and by "interstate." According to the Supreme Court in 1824, commerce that was "interstate" was commerce which con cerned more states than one. 83 In other words, it presupposed a geograph ical transborder element. The judges of the federal courts employed a mercantile definition of commerce, holding that commerce consisted of buying and selling. 84 According to this definition, production, manufac turing, and mining were merely precursors of commerce, but not com merce themselves. Therefore, they could not be regulated by Congress under the commerce clause. 85

This early construction of the commerce clause had the practical ef fect of legitimating the status quo. By construing the commerce clause in such a narrow fashion, the federal judges avoided having to declare countless laws of the state governments to be unconstitutional even

though they had or could have had a detrimental effect on interstate com merce. For example, in one case the federal judges held that a ferry mo nopoly was intrast8.te because the ferry never crossed a border,86 even though passengers and freight moved across state lines. In another case the Supreme Court ruled that brewing and packaging of intoxicating bev erages did not constitute buying and selling ("commerce"), but rather merely "production." Thus the states could forbid the production of alco holic beverages without doing violence to the commerce clause. 87

The mercantile test for commerce survived into the late 19th century, which was a time of expanding federal preoccupation with commerce. 88 As a result of this new federal legislative interest in commerce, the com merce clause became a handy weapon for attacks upon federal legislation. New federal regulations of production, manufacturing, and mining were held to be unconstitutional because, not being commerce, Congress had no power to regulate them.

In one case, a federal agency sought to block the acquisition of a

sugar refinery on the ground that its acquisition would give rise to a mo nopoly unlawful under the Sherman Antitrust Act. The federal judges theorized that the manufacture of sugar was a precondition of commerce, but not exactly commerce itself; as such, it could not be part of interstate commerce over which the federal government had jurisdiction. 89 The same reasoning was applied to the federal Child Labor Act, which for bade the transportation of goods manufactured with the help of child la bor. According to the Supreme Court at the time, manufacture was not commerce,90 at least not interstate commerce. The same reasoning was followed for mining. "Mining," according to the Court, "brings the sub ject matter of commerce into existence. Commerce disposes of it"; and thus Congress could not legislate a nationwide minimum wage for min ers, because mining was not commerce.91 Even if mercantile commerce as

then defined was involved, the federal judges would differentiate between measures that directly (constitutionally) and indirectly (unconstitution ally) regulated commerce. Applying this ancillary test, the federal judges held a federal law setting maximum working hours and minimum wages for the poultry industry to be unconstitutional because the effects of the law on commerce were indirect, not direct.92

B. Recent Commerce Clause Jurisprudence: The Antithesis

The great shift in the opinion of the Supreme Court came in 1937 shortly after President Roosevelt announced his "Court Packing Plan."93 According to Roosevelt's legislative plan, the number of judges on the Supreme Court was to be increased in order to ensure that younger judges-those sympathetic to Roosevelt's legislation-had a majority on the Court. Even though Roosevelt's plan was met with opposition in Con gress, the Court began backing down from its protection of the supremacy of the states in economic matters.94

In the seminal opinion National Labor Relations Board v. Jones & Laughlin Steel Corporation95 the Supreme Court not only abandoned the direct-indirect test, it went further: Even intrastate activities were reach able by Congress under the commerce clause if they had such a close and substantial relation to interstate commerce that their control was essential or appropriate to protect that commerce from burdens and obstructions. Using this new standard, the Supreme Court upheld the National Labor Relations Act of 1935 which, among other things, outlawed unfair em ployment practices such as firing employees for union activity. There fol lowed decisions which emphasized the cumulative effect of the regulated activity on commerce and interstate commerce. Following the lead of Congress, the Supreme Court so expanded the reach of the commerce clause that all activity could be regulated if it had some conceivable, if only cumulative, effect on an interstate transaction. Thus the Supreme Court upheld laws which forbade local, usurious credit transactions;96

which prohibited discrimination in privately owned restaurants97 and ho tels98; which regulated the harvest and consumption of small quantities of wheat99; and which punished arson attacks on apartment buildings.100 The Court even stopped calling production, manufacture, and mining a pre cursor to commerce. Indeed, one case exclusively concerned the regula tion of intrastate mining, yet the federal regulation was upheld on the strength of the commerce clause. 101

Until the Lopez case, the commerce clause seemed not to limit Con

gress's legislative prerogative in any way. Indeed, since the New Deal of the 1930's not a single piece of commerce clause legislation had been held unconstitutional for lack of jurisdiction. 102 Two textbook authors wrote in 1991: "The Supreme Court today interprets the commerce clause as a complete grant of power."103

C. The Lopez Synthesis

In 1992 a twelfth grader came to school in San Antonio, Texas, with a concealed pistol. He was promptly charged with violation of a law, en acted by the legislature of the state Texas, 104 which forbade possession of a gun on the grounds of a school. The following day the complaint against him in the state court was dismissed, and he was charged by the federal grand jury with violation of a federallaw.105 According to the fed eral Gun-Free School Zones Act of 1990,1°6 it is a federal crime know ingly to possess a firearm at a place that the individual knows, or has rea sonable cause to believe, is a school zone.107

The public defender moved to dismiss the criminal indictment on grounds of federalism, arguing that Congress has no power to regulate schools.108 Education, the defense lawyer argued, belongs traditionally to the jurisdiction of the several states of the United States, or to state or local agencies, usually school districts.109 The trial court rejected this argument, but the young man prevailed before the Fifth Circuit Court of Appeals110 and before the Supreme Court. The federal law under which he was convicted was held unconstitutional for lack of federal legislative jurisdiction.

The dissenting opinions in Lopez of Justices Breyer, Stevens, Souter, and Ginsburg apply the expansive definition of commerce that had be used for the past 50 years: any activity can be commerce. The dissenting opinion of Stevens provides a good example of this (antithetical) reason ing:

Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit pos session of guns at any location because of their poten tially harmful use; it necessarily follows that Congress may also prohibit their possession in particular mar kets.lll

Having met the requirement of "commerce," the dissenting Justices tum to the issue that the commerce be "interstate." Here they join in the opin ion of Breyer, who, loyal to the antithetical position, argues as follows: violence in schools, including violence with weapons, hinders learning by the pupils, which in turn has an impact on interstate commerce because a good education is important in the job market, and job markets are inter state.112

Of course schools play a very important role in society, but the rela tionship to commerce is weak and even a little insulting, since children are not sent to school solely or even predominately to serve commercial ends. Sometimes it is difficult to accept that the Congress can regulate something as ephemeral and banal as day-to-day commercial transaction, and not something as meaningful and lasting as a grade-school education. But this is exactly how the federal government was designed, the majority reasoned: the federal government was meant to augment the powers of the states, not the other way around.

The Gun-Free School Zones Act, which was part of a larger legisla tive package, was signed by President George Bush under protest. He saw federal regulation as unnecessary and potentially disruptive to legitimate state regulation of the same subject matter.113 And, in fact, almost 40 states-including Texas, where the Lopez case arose-have such legisla tion on their books.114

The judges in the majority of the Lopez case (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) agreed with the former President. In his opinion for the majority, Chief Justice Rehnquist differentiates three types of commerce based laws. First, Congress may regulate the channels of interstate commerce, such as hotels.115 Second, Congress can regulate the instrumentalities of interstate commerce, or persons or things in inter state commerce. Examples include safety measures for vehicles, even if they are not necessarily driven across state boundaries. 116 Third, federal legislative jurisdiction extends to certain activities having some relation to interstate commerce, or that affect interstate commerce in a particular way. This is where the synthesis is reached. Rehnquist reiterates the test for measuring the constitutionality of a commerce clause law: "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."117 First, the activity regulated must be economic, i.e., commercial. Second, this activity must have a substantial interstate effect, suggesting that a cumulative or theoretical effect alone might be insufficient.118

In the case of the Gun-Free School Zones Act only the third avenue of constitutionality comes into question, that of economic activities hav ing a substantial relation to interstate commerce, or substantially affect ing interstate commerce. Using Rehnquist's synthetic standard,119 the case is easy to decide. Mere possession of a gun at school is not economic ac tivity. Congress therefore lacks jurisdiction to regulate this activity under the interstate commerce clause.

D. Future Judicial Progression: Subsidiarity

The magnitude of the fallout from the Lopez decision is not mathe matically quantifiable. More than 100 federal laws in the United States Code, including more that 25 criminal provisions, employ the words "af-

fecting commerce" in defining the reach of the law.120 In addition, many laws which are based on the commerce clause, including the Gun-Free School Zone Act, do not mention the commerce clause at all. Because of these facts, and because of the breadth of the topic, the following discus sion can make only observations of a general nature.

Federal social programs-such as old-age benefits, 121 medical care for the poor,122 and medical care for the aged and handicapped123-are based on the federal spending power124 and as such are not directly af fected by the Lopez decision. Federal anti-discrimination laws, even if based on the commerce clause, are not threatened by Lopez because they regulate the channels of commerce, such as hotels, restaurants, and the workplace.125 Federal criminal law is concerned to a great extent with interstate and international crimes, such as drug smuggling, and crimes which employ the channels of commerce, including telephones and the post office. 126 Tax laws enjoy their own base of federal legislative juris diction, 127 even when employed as instruments of indirect regulation.128

Federal family law is a field in which the impact of Lopez has already been felt: a federal district court in Arizona129 has ruled that Congress exceeded its regulatory powers under the commerce clause in enacting the Child Support Recovery Act of 1992,130 which establishes a national program to aid states in developing and implementing child support en forcement policies and procedures. m But other courts have upheld the Child Support Recovery Act as a constitutional exercise of Congress's commerce power. 132 Other family law legislation appears constitutional

under Lopez either because it regulates the "channels of commerce,"133 employs the grant of Congressional power under the Fourteenth Amend ment134 to enforce that Amendment's prohibition of state discrimina tion, 135 or employs the spending power of Congress.136

The Lopez case will have little effect on the constitutionality of fed eral environmental legislation because most of the laws are not based ex clusively on the "affecting commerce" aspect of the commerce clause. If they are, then jurisdictional problems may arise in the application of an otherwise constitutional statute. The Clean Water Act seeks to control the discharge of pollutants into the "waters of the United States."137 Over zealous administrative extension of this territorial jurisdiction can bring invalidity of an action.138 Another very important piece of environmental legislation, the Clean Air Act, is not affected by the reasoning of the Lopez decision because it employs a system of incentives to the states to entice them to prepare and enforce State Implementation Plans. 139 The Endangered Species Act can in part be considered an exercise of the power of the federal government to enter into treaties with foreign coun tries.140 Federal laws implementing treaties are binding on the states with out a separate ground of federal legislative jurisdiction.141 The National

Environmental Policy Act, 142 like many federal environmental laws, af fects federal agencies and projects that are supported by federal funds, in other words, projects which would fall under Congress's spending power. 143 As such they are not affected by the Lopez decision.

Other federal environmental laws, on the other hand, are exclusively based on the interstate commerce clause. Exemplary is the Surface Min ing Control and Reclamation Act of 1977,144 which dictates mining prac tices for open-space mining and requires restoration after mining. In 1981 the Supreme Court145 upheld the constitutionality of the law despite the fact that it only indirectly (if at all) regulated interstate commerce. The Supreme Court would likely reach the same result today, because mining is a commercial activity with a substantial impact on interstate and for eign commerce.

The political and judicial struggle regarding states' rights seems des tined, at least in the near future, to be dominated by the concepts and pre cepts of the commerce and the spending clauses. This is unfortunate, be cause the tradition, thinking, and terminology of commerce, spending, and economics do not lend themselves well to the present-day debate on federalism. For instance, the reason why school-ground guns do not seem to many to be an appropriate subject of federal regulation has nothing to do with commerce or the economy or federal spending but rather with the tradition of local supervision of education and with the conviction that local governance of education is preferable.

According to one commentator, family law, like education, should remain "localized" under the commerce clause.146 Another suggests that federal power over commerce ought only exist where there is special jus tification for it. 147 Without ever referring to it by name, both of these commentators, as well as many others, have articulated values underpin ning the European principle of subsidiarity.

"Subsidiarity expresses a preference for governance at the most local level consistent with achieving government's stated purposes."148 Exam

ples can found in the Constitution of Germany and in the Treaty of Rome, the "constitution"149 of the European Union. In Germany, the principle of subsidiarity finds potential150 application to a long list of subject matter areas, such as civil law, criminal law, weapons legislation, and welfare, 151 in which the federal and state governments have concurrent jurisdiction. In these areas, the German Constitution circumscribes the federal legisla tive prerogative:

(2) The federal government has legislative jurisdiction [in matters subject to concurrent jurisdiction] only to the extent that federal legislation is necessary because 1. a matter cannot be effectively regulated by legisla

2.

3.

tion of individual states or the regulation of a matter by state law could impair the interests of other states or of the whole [of the people] or the protection of legal or economic uniformity demands it.152

The principle of subsidiarity enjoins institutions of the European Un ion to act in areas of concurrent jurisdiction "only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States."153 The new provision154 reads as follows:

The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objec tives assigned to it therein.

In areas which do not fall within its exclusive com

petence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be suffi ciently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objective<; of the Treaty.155

Professor Bermann' s splendid article on subsidiarity collects and in

terprets expressions of subsidiarity found in the interstices of American institutions.156 He finds few guarantees in the U.S. system that the federal government will act only when the states cannot or will not do so on their own. 157 Professor Bermann rejects the Tenth Amendment as a constitu tional anchor/58 but perhaps the "necessary and proper" clause159 might be read to embody subsidiarity. Or subsidiarity might be held to belong to penumbral states' rights a la the privacy rights of individuals.160 Or per haps the Constitution will be amended, or the congressional mentality will so change that no amendment is necessary. In any event, the author senses that Lopez signals the emergence of a deeper synthesis, one that can be referred to as localism or subsidiarity.

The Lopez decision is important because it announces and applies a new interpretation of the interstate commerce clause as a basis for federal legislation. Instead of employing the very narrow interpretation given the

clause at the beginning of this century (referred to as thesis) or employing the extremely broad, antithetical interpretation of the last fifty years ("everything is interstate commerce"), the Justices of the Supreme Court have settled on a synthesis: if economic activity substantially affects in terstate commerce, then the federal government may regulate that activity under the commerce clause. In addition, the means and instrumentalities of commerce remain subject to federal regulation.

The Lopez decision's immediate impact on existing legislation will be minor. Few pieces of legislation will be declared unconstitutional. Therefore it is not to be expected that an attempt will be made to amend the Constitution to give Congress the power it lacked to enact the Gun Free School Zones Act. Even after the decision in Lopez, Congress can devote itself to legislative matters of more substance and importance161 than a prohibition against school weapons. For many other pieces of fed eral weapons legislation--such as the machine gun prohibition and the waiting period law (Brady Bill)-are not threatened by the Lopez deci sion. Congress can still exercise its legislative jurisdiction to control wea pons. What is lacking is the political will, not the legislative jurisdiction. The reason for this is in part the fact that, for non-Black Americans, the murder and manslaughter rates in the United State.<> approximate those in Europe, which is believed by most to have much lower crime rates.

The author perceives Lopez as a harbinger of a new movement to ward recognition of the virtues of local governance. Like its subsidiarity, its European counterpart, local governance or "localism" respects diver sity, and it promotes self-determination, accountability, and flexibility. How this movement will manifest itself remains to be seen.

--- FOOTNOTES ---

* Professor of Law, University of Munster, Germany. Dr. jur., Unive.rsity of Bonn,

Germany; J.D. University of California, Berkeley.

1. THE NEW COUIMBIA ENCYCLOPEDIA 757 (1975). The German term rendered as "world

soul" is Weltgeist.

2. Friedrich Hogemann & Walter Jaeschke, Die Wissenschaft der Logik, in HEGEL:

EINFtJHRUNG IN SEINE PHILOSOPH!E 75, 84 et seq. (Otto Poggeler ed. 1977).

3. Michael Forster, Hegel's Dialectical Method, in THE CAMBRIDGE COMPANION TO HEGEL

130, 146-4 7 (1995).

4. Manfred Baum & Kurt Rainer Meist, Recht-Politik-Geschichte, in HEGEL: EINFDHRUNG

IN SEL"'E PH!LOSOPH!E 106, 106 (Otto Poggeler ed. 1977).

!d. at 136.

5. 6. Lopez v. United States, 115 S. Ct. 1624 (1995). The literature on Lopez is expanding rapidly. Some of the many treatments are Stephen R. McAllister, Is There a Judicially Enforceable Limit to Congressional Power Under the Commerce Clause?, 44 KAN. L. REV. 217 (1996), criticized in Tom Stacy, What's Wrong with Lopez, 44 KAN. L. REV. 243 (1996). See also Dailey, infra note 1 31 ; Regan, infra note 14 7; Cahn, infra note 131 ; Comment, infra note 146; Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615 (1995); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979 (1995); Charles Fried, The Supreme Court, 1994 Term: Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995); Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. REs. L. REV. 695 (1996); Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643 (1996); Kathleen F. Brickey, Crime Control and the Commerce Clause: Life After Lopez, 46 CASE W. RES. L. REV. 801 (1996); Symposium: Reflections on United States v. Lopez, 94 MICH. L. REV. 533 (1995);

).

).

Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal Jurisdiction, 45 EMORY L.J. 1 (1996); Renee M. Landers, Federalization of State Law: Enhancing Opportunities for Three-branch and Federal-state Cooperation, 44 DEPAUL L. REV. 811 (1995); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719 (1995); Stephen M. McJohn, The Impact of United States v. Lopez: The New Hybrid Commerce Clause, 34 DUQ. L. REv. 1 (1995).

7. U.S. CONST. art. I, § 8, cl. 3: "To regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes."

8. See discussion infra notes 83 through 92. 9. See discussion infra notes 93 through 103. 10. See discussion infra notes 104 through 119. 11. U.S. CONST. amend. II. The Second Amendment's right to bear arms is used as a shorthand term for a more complex history and cluster of issues briefed infra notes 41 through 4 7.

those unarticulated powers ("states'

12. 18 U.S.C. § 922(o) (1994), see discussion infra note 48. 13. 18 U.S.C. § 922(q)(2)(A) (1994), see discussion infra note 106. 14. 18 U.S.C. § 922(s) (1994), see discussion infra note 52. 15. The Tenth Amendment (U.S. CONST. amend. X, quoted infra note 31) serves in this article as a shorthand for the state-sovereignty thesis. The term "sovereignty" is employed to refer to state regulatory to jurisdiction. E.g., Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) ("The Constitution created a Federal Government of limited powers .... The States thus retain substantial sovereign authority under our constitutional system."); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549 (1985) ("The States unquestionably do 'retain a significant measure of sovereign authority' ... to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government" (citation omitted . The term is used advisedly. See Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 346 (arguing that the word is inappropriate to American federalism).

that belong exclusively

rights")

16. The importance of New Deal legislation and the judicial responses to it are discussed in Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994). See BRUCE A. ACKERMAN, WE THE PEOPLE: FOUNDATIONS 40, 47-50, 105-30 (1991). According to Professor Ackerman, the events of 1937 constitute a revolution that "ends in the constitutional triumph of the activist welfare state." !d. at 40. See generally BRUCE A. AcKERMAN,

I. LEGISLATIVE GUN CONTROL MEASURES

RECONSTRUCTING AMERICAN LAW 6-22 (1984) (discussing the realist legacy of the New Deal).

17. See discussion infra notes 64 through 67. 18. Subsidiarity is discussed infra notes 146 through 160. 19. U.S. CONST. art. I, § 8, cl. 11. 20. 21. 22. Jd. art. I, § 8, cl. 12. 23.

Id. art. I, § 8, c1. 5. Id. art. I, § 8, cl. 7.

!d. art. I, § 8, cl. 8.

24. 25. 26. 27. 28. 29.

!d. art. I, § 8, cl. 4. /d. art. I, § 8, cl. 1. /d. /d. art. I, § 8, cl. 4. /d. art. I, § 8, cl. 3. /d. amend. X. For a general discussion of the Court's Tenth Amendment jurisprudence, see, e.g., Martha Field, Garcia v. San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine, 99 HARV. L. REV. 84 (1985); Rapaczynski, supra note 15; William W. Van Alstyne, Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, 1987 DUKE L.J. 769.

30.

Justice O'Connor in New York v. United States, 505 U.S. 144, 157 (1992). See United States v. Darby, 312 U.S. 100, Ill (1940) (upholding sections of Fair Labor Standards Act as within scope of regulation of interstate commerce). Justice Stone, delivering the opinion of the Court in Darby, wrote:

Our conclusion is unaffected by the Tenth Amendment. ... The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

/d. at 123-24.

31. U.S. CONST. amend. X. 32. U.S. CONST. art. L § 8, cl. 1. The commerce clause has gained in importance in part because regulations under the commerce clause, unlike those under the spending clause, enable the imposition of criminal penalties. Robert L. Stem, The Commerce Clause Revisited-The Federal ization of Intrastate Crime, 15 ARIZ. L. REV. 271, 274 (1973); see GERALD GUNTHER, CONSTI TUTIONAL LAW 137 (12th ed. 1991).

33. These do not just include outlays for defense, which make up one-fifth of the federal budget, but also for social programs. Just three of these federal social programs-Social Security (retirement), Medicare (medical care for the aged and handicapped), and Medicaid (medical care for the poor)-are responsible for one-third of the federal budget. David Hage et al., Facing the Fiscal Facts, U.S. NEWS & WORLD REPORT, May 22, 1995, at 51. Other social programs which are based on the federal spending power include Aid for Families with Dependent Children (AFDC) and Food Stamps (coupons with which to buy foodstuffs). Five million families with 9 million children received AFDC in 1994. Robert J. Samuelson, Welfare Can't Be Reformed, NEWSWEEK, March 27, 1995 at 47. Over 27 million US residents, i.e., over 10 percent of the population, received Food Stamps in October 1994. SAN DIEGO UNION-TRJB., Dec. 30, 1994 at AS. 34. U.S. CONST. amend. XVI: "The Congress shall have power to lay and collect taxes on

incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." The Sixteenth Amendment overturned Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), and repealed Article I, Section 9, Clause 4 of the Constitution, which had stated that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

The Sixteenth Amendment effectively gave the national government unlimited control of the nation's wealth and a virtually unlimited spending power. Lino A. Graglia, From Federal Union to National Monolith: Mileposts in the Demise of American Federalism, 16 HARV. J.L. & PUB. PoL'Y 129, 130-31 (1993).

35. U.S. CONST. art. 1, § 8, cl. 1. 36. E.g., Rapaczynski, supra note 15; Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REv. 1103, 1131 (1987) ("If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed"). Other treatments include Th0mas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85; Ronald D. Rotunda, The Doctrine of Conditional Preemption and Other Limitations on Tenth Amendment Restrictions, 132 U. PA. L. REV. 289 (1984); David E. Engdahl, The Spending Power, 44 DUKE L. J. 1 (1994); Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1929 (1995); Note, Tower of Power: South Dakota v. Dole and the Strength of the Spending Power, 49 U. Pm. L. REV. 1097 (1988); Note, The Surface Transportation Assistance Act: Federalism's l.11st Stand?, 11 VT. L. REV. 203, at 212-13, 230 (1986).

37. Lundmark, infra note 109, at 424, (advocating use of the three-part test of Hodel v. Vir ginia Surface Mining & Reclamation Association, 452 U.S. 264 (1981) for federal measures that directly bind the states: (1) Does the measure regulate the states as states; (2) Does it address matters that are indisputably attributes of state sovereignty; and (3) Does it directly impair the ability of states to structure integral operations in areas of traditional governmental concern. ld. at 286-87). Two renowned constitutional scholars doubt the need for judicial review of states' rights issues. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 CoLUM. L. REV. 543, 546 (1954) (contending that the states can effectively protect their own interests through the national political process) and Jesse H. Choper, The Scope of National Power Vis-a-Vis the States: The Dispensability of Judicial Review, 86 YALE. L.J. 1552, 1560 (1977) ("Numerous structural aspects of the national political system serve to assure that states' rights will not be trampled, and the lesson of practice is that they have not been.").

38. TRmE, infra note 103, at 475 n.1: "Congress can, [after Dole], achieve by way of its spending power much of what the twenty-first amendment may deny it the ability to achieve through its commerce power." See RICHARD A. EPSTEIN, BARGAINING WITH THE STATE 150-51 (1993).

39. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). 40. Federal grant~ to states and localities have constituted an increasingly large proportion of total state and local revenues, increasing from 11 percent in 1950 to 20 percent in 1991. See U.S. ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, 2 S!GNIF1CANT FEATURES OF FISCAL FEDERALISM, REVENUES AND EXPENDITURES, 56, tbl. 23 (1992). See Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judic.ial Role, 79 CoLUM. L. REV. 847, 871-72 (1979) (tracing development of federal offers of funds to the states from their beginnings in the early 1800's).

41. U.S. CoNST. amend. II. 42. For a contrary view, see Sanford Levinson, The Embarrassing Second Amendment, 99

YALE L.J. 637 (1989).

43. Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 247 (1989). No court has ever recognized a personal constitutional right to bear arms. Andrew D. Herz, Constitutional False Consciousness and Dere Liction of Dialogic Responsibility, 75 B.U.L. REV. 57, 58 (1995).

I.R.C. §§ 5801-5872, 48 Stat. 1236-40.

44. 45. This law has as its constitutional base the federal taxing power (U.S. CONST. art. I, § 8, cl. 1) and is therefore not affected by the Lopez decision, which applies to commerce clause regulations.

46. Pub. L. No. 90-351. 47. This law directly affects commerce and substantially (if indirectly) affects interstate

commerce. fulfilling the requirement~ of the Lopez decision.

48. 18 U.S.C. § 922(o) (1994): "[I]t shall be unlawful for any person to transfer or possess a machine-gun." The courts have interpreted the law not to forbid the ownership and sale of weapons manufactured and registered before May 19, 1986, when the law took effect. See States v. Rock Island Armory, Inc., 773 F. Supp. 117, 119 (C.D. Ill. 1991) and Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 104 (1991).

49. As far as state legislation is concerned, California's prohibition against attack weapons was upheld in Fresno Ritle & Pistol Club v. Van de Kamp, 965 F.2d 723, 731 (9th Cir. 1992). Similar prohibitions can be found in 1993 Conn. Acts 93-306; and 1990 N.J. Laws 32. In Virginia one may only purchase one gun per month. VA. CODE ANN. § 18.2-308.2:2(Q) (Michie Supp. 1994).

50. Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. §§ 921-924

(1994).

51. Farmer v. Higgin.~. 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 104 (1991). 52. 18 U.S.C. § 922(s) (1994). 53.

It also requires the chief law enforcement officer of each state to do a background check on each prospective buyer. "A chief law enforcement officer ... shall make a reasonable effort to ascertain within 5 business days whether receipt or possession [of a handgun by the prospective buyer] would be in violation of the law, ... " !d.

54. See text supra note 3. 55. Congress may not simply "commandeer ... the legislative processes of the States by directly compelhng them to enact and enforce a federal regulatory program.'' New York v. United States, , 176 (1992) (citing Hodel v. Virginia Surface Mining & Reclamation A~s·n. , 288 (1981 . See Note, Federal Gun Control in the United States: Revival of the Tenth Amendment, 10 ST. JOHN's J. LEGAL CoMMENT. 151 (1994) and ca.•es discussed, including United States v. Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993), rev 'd sub nom. United State.~ v. Osteen, 30 F. 3d 135 (6th Cir. 1994), petition for cert. filed, No. 94-6640 (Oct. 24, 1994).

56. See the discussion of the congressional spending power supra notes 32 through 40. See

also New York v. United States, (1992).

57. Gun Violence Prevention Act, S. 1882, 103d Cong., 2d Sess. (1994). 58. Under this bill, all handgun buyers must possess a handgun card, a nationally uniform license issued through the states. This card will be issued after a thorough background check. including fingerprints. Applicants for a card must complete a basic ftrearrns safety course, and must pass a test. The card would he issued by the states following uniform minimum standards issued by the Secretary of the Trea.~ury. Id.

59. U.S. CoNST. art. I, § 8, cl. 1. See discussion supra notes 32 through 40. 60. See supra notes 32 through 40 (discussing congressional spending power). See also New

York v. United States, (1992).

61. Allen W. Wood, Hegel and Marxism, in THE CAMBRIDGE COMPANION TO HEGEL 414, 439 (1995). Even Marx, who saw the downfall of capitalism and the victory of the working class as inevitable, stopped short of writing "recipes for the cookshops of the future." !d. at 440.

/d.

62. 63. Herz, supra note 43, n.3 at 58. 64. Another popular argument is that the activities of the powerful gun lobby prevent actualization of the public will. E.g., Herz, supra note 43, at 112. The author believes that the popular will is simply not strong enough to change the status quo.

65. 1995 F.B.I. UNIFORM CRIME REPORT FOR THE US, tbl. 2.4, at 14. 66.

In 1992 traffic accidents claimed 41,710 lives, HIV killed 33,590, and suicide accounted for 29,760 deaths. Homicide and legal intervention accounted for 29,570 fatalities. SAN DIEGO UNION-TRIB., Jan. 9, 1997, at A-4, col. 5.

67. The life expectancy in the United States is 75.5 years, just barely longer than in Great Britain (15.3 years), Denmark (75.4 years), Finland (75.0 years), Austria (74.4 years), and Germany and Belgium (14.8 years), and not far behind France (75.9 years), Sweden (77.1 years) and Norway (76.8 years). WORLD RESOURCES INSTITUTE, THE 1993 INFORMATION PLEASE ENVIRONMENTAL AlMANAC 517,519,525,531,561,565, and 603 (1993).

68.

In the aftermath of the Dunblane massacre, in which Thomas Hamilton killed 16 children and their teacher, the House of Commons passed legislation to ban all handguns above .22 caliber. THE DAILY TELEGRAPH, Nov. 20, 1996, at 25; 9 CAL. INT'L L. SEC. NEWSL. 14 (1996/1997). Compensation for gun owners affected by the proposed ban on most pistols is expected to cost more than £ 100 million. THE DAILY TELEGRAPH, Nov. 16, 1996, at 12.

to propose amendments, and the subsequent consent, by

69. Article V of the U.S. Constitution requires the consent of two-thirds of both houses of the legislature or by a Congress convention, of three-fourths of the states for ratification. An amendment also can be proposed by a national convention called by Congress pursuant to the Application of the legislatures of two-thirds of the states. U.S. CONST. art. V.

70. 60 U.S. 393 (1857).

71. U.S. CONST. amend. XIV, quoted infra note 134. Amendment XV reads:

SECTION I. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition or servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.

72. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895). 73. Oregon v. Mitchell, 400 U.S. 112 (1970). 74. See Huddleston v. United States, 415 U.S. 814, 833 (1974) (upholding federal regulation

of weapon sales under the commerce clause).

75. Actions for compensation for expropriation are outside the scope of this article. Compare Andrus v. Allard, 444 U.S. 51 (1979) (prohibition against commerce in partB of eagles held not to constitute a taking of property without compensation because possession was not prohibited) with Mugler v. Kansas, 123 U.S. 623 (1887) (closing of a brewery did not give rise to a claim for compensation because the sale of alcoholic beverages had been legislatively branded a "nuisance"). See Thomas Lundmark, Neueste Enteignungsrechtsprechung des US Supreme Court und ihre Bedeutung fUr das Naturschutzrecht, NATUR UND RECHf (appearing shortly). See also note 68, infra, mentioning the compensation provided for under new legislation in the United Kingdom that bans certain handguns. 76. See infra note 114. 77. Three days after the Court's ruling in Lopez, President Clinton announced plans lo introduce legislation that would encourage states to ban guns from school zones by linking Federal funds to enactment of school-zone gun bans. Todd S. Purdum, Clinton Seeks Way to Retain Gun Ban in School Zones, N.Y. TIMES, Apr. 30, 1995, at Al. See Lundmark, infra note 109, at 421. 78. The courts have often referred to Medicaid, and other federal welfare programs largely administered and implemented by states, as examples of "cooperative federalism." See, e.g., Harris v. McRae, 448 U.S. 297, 308 (1980); Douglas v. Babcock, 990 F.2d 875, 878 (6th Cir.), cert. denied, 114 S. Ct. 86 (1993); Washington Dep't of Social & Health Servs. v. Bowen, 815 F.2d 549, 557 (9th Cir. 1987); see also King v. Smith, 392 U.S. 309, 316 (1968) (using the term "cooperative federalism" to dest.Tibe the Aid to Families with Dependent Children program); and Hodel v. Virginia Surface Mining & Reclamation Ass'n, , 289 (1981) (using the term to describe provisions of the Surface Mining and Reclamation Act found constitutional).

79. National Minimum Drinking Age Act, 23 U.S.C. § 158 (1994), upheld in South Dakota v. Dole, 483 U.S. 203 (1987) (holding that the spending power permit• Congress to condition highway funds on states' adoption of minimum drinking age).

80. See New York v. United States, (1992) (holding that a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. § 202lb (Supp. 1992)

Il.

JUDICIAL CONSTRUCTION OF THE INTERSTATE COMMERCE CLAUSE

specifying that a state that fails to provide for the disposal of all internally generated wa.~te becomes liable for all damages suffered by the generator or owner as a result of the state's failure take possession of the waste was an unconstitutional command to implement legislation enacted by Congress). This case is discussed at length, among other places, in Hazeltine, infra note 103, Levy, infra note 103, and Caminker, infra note 103.

81. U.S. CONST. art. l, § 8, d. 3, quoted in supra note 7. 82. Historically, the interstate commerce clause was intended to prevent Balkamzation and to encourage creation of a national market. See Hughes v. Oklahoma, 441 U.S. 322, 325 (1979). Similar concerns motivated the formation of the European Common Market. See GEORGE A. BERMANN ET AL., CASES AND MATERIALS ON EUROPEAN COMMUN!IY LAW 2 (1993); THOMAS C. FISCHER, THE EUROPEANIZATION OF AMERICA: W!IAT AMERICANS NEED TO KNOW ABOUT THE EUROPEAN UNION 29 (1995) (reviewed in Thomas Lundmark, 45 AM. J. OF COMP. L. (1997 .

83. Gibbo11~ v. Ogden, 22 U.S. 1 (1824). 84. E.g., United States v. E. C. Knight Co., 156 U.S. 1, 13 (1895) ("Contract.~ to buy, sdl, or exchange goods its instrumentalities . . . may be regulated, but this is because they form part of interstate trade or commerce").

to be transported among

the transportation and

the several States,

85. See Wickard v. Filburn, 317 U.S. 111, 121 (1942) (describing development of commerce

clause jurisprudence).

86. Veazie v. Moor, 55 U.S. 568, 573-575 (1853). In an earlier case, Gibbons had operated a passenger ferry between New York and New Jersey under a federal license. Ogden claimed that the federal license violated his monopoly, granted by the state of New York, over steamboat transportation between the two states. Because Gibbons' transportation of passengers took place between two states, i.e., it was transborder, it was held to constitute interstate commerce and to lie within the federal legislative jurisdiction. Gibbons v. Ogden, 22 U.S. 1 (1824).

87. Kidd v. Pearson, 128 U.S. 1, 17, 20-22 (1888). For an overview of constitutional questions regarding the regulation of alcohol, see Thomas Lundmark, Freiheit der Werbung und der Grundsatz der VerhaltnifJnUljJigkeit in der amerikanischen Rechtsprechung, 1994 VERWALTUNGS-ARCH[V 522.

88. Examples of federal legislation stemming from this time period include the Interstate Commerce Act of 1887, 24 Stat. 379; and the Sherman Antitrust Act of 1890, 26 Stat. 209 (current version at 15 U.S.C. § 1 et seq. (1994 .

89. United States v. E.C. Knight Co., 156 U.S. 1 (1895). 90. Hammer v. Dagenhart, 247 U.S. 251 (1918). 91. Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).

92. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (in which the Supreme

Court declared the National Industrial Recovery Act of 1933, 15 U.S.C. § 703 (1994), unconstitu tional, in part as an unlawful delegation of legislative power to the executive without sufficient standards).

93. On February 5, 1937, President Franklin Delano Roosevelt announced a bill to reor ganize the federal judiciary. See Franklin D. Roosevelt, The 342d Press Conference (Feb. 5, 1937), in 6 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT: THE CONSTITUTION PREVAILS 1937, 35, 49-50 (1941).

94. See generally DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE

SECOND CENTURY 235 (1990). 95. 301 u.s. 1 (1937). 96. Perez v. United States, 402 U.S. 146, 155-156 (1971).

97. Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964). 98. Heart of Atlanta Hotel v. United States, 379 U.S. 241 (1964). 99. Wickard v. Filburn, 317 U.S. 111 (1942).

103.

100. Russell v. United States, 471 U.S. 858, 862 (1985). 101. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., (1981). 102. The l~t case declaring a commerce clause regulation unconstitutional for want of federal legislative jurisdiction was Railroad Retirement Board v. Alton Railway Co., 295 U.S. 330 (1935). JOHN E. NOWAK & RONALD 0. ROTUNDA, CONSTITUTIONAL LAW 154 (4th ed. 1991). "For almost four decades after 1937, the conventional wisdom was that federalism in general--and the rights of states in particular--provided no judicially-enforceable limit~ on congressional power." LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-20, at 378 (2d ed. 1988). See also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLrfiCAL SEDULIION OF THE LAW 158 (1990); ROGERS M. SMITH, LIBERALISM AND AMERICAN CONSTITUTIONAL LAW 162 (1990); William A. Hazeltine, New York v. United States: A New Restriction on Congressional Power Vis-a-Vis the States?, 55 OHIO ST. L.J. 237 (1994); Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 KAN. L. REV. 493 (1993); and Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 CoLUM. L. REV. 1001 (1995).

104. TEX. PENAL CODE ANN. § 46.03(a)(l) (Supp. 1994). 105. Lopez v. United States, 115 S. Ct. 1624, 1626 (1995). 106. 18 U.S.C. § 922(q)(2)(A) (1994). 107. A school zone is defined in 18 U.S.C. § 921(a)(25) as "in, or on the grounds of, a

public, parochial or private school [or] within a distance of 1,000 feet from the grounds of a public, parochial or private school."

108. The constitutional right to bear arms, discussed supra note 41, is not mentioned in the

164-page opinion of the Court in Lopez.

109. Thoma.~ Lundmark, Die Bedeutung der Gliedstaaten im amerikanischen Veifassungs

system, 1992 DIE OFFENTLICHE VERWALTUNG 419.

110. Lopez v. United States, 2 F.3d 1342 (5th Cir. 1993). 111. Compare the legislative findings, adopted by Congress after the enactment of the

legislation, found at 18 U.S.C. § 922(q) (1994):

(l)(A) Crime, particularly crime involving drugs and guns, is a perva.~ive, nationwide problem; (B) Crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs; (C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, ... ; (D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; ... (G) ... [a] decline in the quality of education has an adverse impact on interstate commerce . . . .

112. As a law student notes, this argument would also support a federal ban on chewing gum in schools, because gum chewing hinders learning, which in tum has an impact on interstate com merce because a good education is important in the job markets. James M. Maloney, Note, Shooting for an Onmipotent Congress: The Constitutionality of Federal Regulation of Intrastate Firearms Possession, 62 FoRDHAM L. REV. 1795, 1826 (1994).

113. "The policies reflected in these provisions could legitimately be adopted by the States, but they should not be imposed upon the States by the Congress." President's Statement upon Signing S. 3266, 26 WEEKLY COMP. PRES. Doc. 1945 (Nov. 29, 1990).

114. E.g., N.D. CENT. CODE§ 62.1-02-05 (1985); 18 PA CONS. STAT. ANN. § 912 (1983). After the Gun-Free School Zones Act was passed in 1990, many states amended existing laws or enacted similar bans. E.g., ALASKA STAT.§ 11.61.195(a)(2)(A) (Supp. 1993); ARIZ. REV. STAT. ANN. § 13-3102(A)(l2) (Supp. 1993); ARK. CODE ANN. § 5-73-119(a)(2)(A) (Michie 1993); CAL. PENAL CODE§ 626.9 (Deering Supp. 1994); COLO. REV. STAT. ANN.§ 18-12-105.5 (West Supp. 1993); CONN. GEN. STAT. ANN. § 53a-217b (West Supp. 1993); FLA. STAT. ANN. § 810.095 (West 1994); GA. CODE ANN.§ 16-11-127.1 (1994); IDAHO CODE§ 18-3302C(l) (Supp. 1994); ILL. ANN. STAT. ch. 720, para. 5/24-1 (a)(l2)(c)(l) (Smith-Hurd 1994); LA. REV. STAT. ANN. § 14:95(A)(5) (West Supp. 1994); ME. REV. STAT. ANN. tit. 20-A, 6552 (West 1994); MD. ANN. CODE art. 27, § 36A (1992); MASS. GEN. L. 269 § lO(j) (1992); MINN. STAT. ANN. § 609.66(1)(b)(l) (West Supp. 1994); MISS. CODE ANN. § 97-37-17 (1993); MO. ANN. STAT. § 571.030(1)(8) (Vernon Supp 1994); MONT. CODE ANN.§ 45-8-334 (1993); NEV. REV. STAT. § 202.265.l(e) (1993); NJ. STAT. ANN. § 2C:39-5.e (West Supp. 1994); N.M. STAT. ANN. § 30-7-2.1 (Michie Supp. 1993); N.Y. PENAL LAW § 265.01(3) (McKinney 1989); N.C. GEN. STAT. § 14-269.2 (1993); OHIO REV. CODE ANN.§ 2923.122 (Anderson 1993); OKLA. STAT. ANN. tit. 21, § 1280.1 (West Supp. 1994); OR. REV. STAT. § 166.370 (1993); R.I. GEN. LAWS § 11-47-60 (1993); S.C. CODE ANN. § 16-23-420 (Law. Co-op. Supp. 1993); S.D. CODIFIED LAws ANN. § 13-32-7 (Supp. 1994); TENN. CODE ANN.§ 39-17-1309 (1991); TEX. PENAL CODE ANN.§ 46.03(a)(l) (Vernon Supp. 1994);

UTAH CODE ANN. § 76-3-203.2 (Supp. 1993); VT. STAT. ANN. tit. 13, § 4004 (Supp. 1993); VA. CODE ANN. § 18.2-308.1 (Michie Supp. 1994); WASH. REV. CODE ANN. § 9.41.280 (West Supp. 1994); WIS. STAT. ANN. § 948.605 (West Supp. 1993).

115. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). The anti-discrimination law at issue in the Heart of Atlanta case and other Civil Rights laws are not threatened by the reasoning of the Lopez decision because they fit into this category of the channels of commerce.

116. Southern R. Co. v. United States, 222 U.S. 20 (1911). 117. Lopez, 115 S. Ct. at 1634 (emphasis added). 118. The second part of the test-substantial effect on interstate commerce-is technically a dictum because it was not necessary to the decision of the Court because the regulation at issue failed the first prong of the test.

119. The absence of legislative findings, which was important to the Court of Appeals in declaring the law unconstitutional, was relatively unimportant to the United States Supreme Court, which agreed with the Government that Congress was not required to make formal findings on the substantiality of the influences on interstate commerce. Lopez, 115 S. Ct. at 1626 (1995). On the issue of findings in general, see Maloney supra note 112, at 1817.

120. Lopez, 115 S. Ct. at 1646 (1995) (Breyer, J., dissenting). The author's LEXIS-search

revealed 112.

121. Social Security Act, 42 U.S. C. § § 1395-1395ccc (1994). 122. !d. §§ 1395-1395xx (Medicaid). 123. !d. §§ 1396-1396u (Medicare). 124. U.S. CONST. art. I, § 8, cl. 1, discussed supra notes 32 through 40. 125. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). They may protect the constitutional right of interstate travel. See United States v. Guest, 383 U.S. 745 (1966). Another basis of congressional empowerment is section 5 of the Fourteenth Amendment. See Katzenbach v. Morgan, 384 U.S. 641 (1966).

126. See generally Beale, supra note 6, Brickey, supra note 6, and Kurland, supra note 6. 127. U.S. CONST. art. I, § 8, cl. 1. 128. See, e.g., Sonzinsky v. United States, 300 U.S. 506 (1937), rev'd on other grounds. THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION, S. Doc. No. 99-16, p. 145 (1987).

129. United States v. Mussari, 894 F. Supp. 1360 (D. Ariz. 1995); United States v.

Schroeder, 894 F. Supp. 360, 364 (D. Ariz. 1995).

130. 18 U.S.C. § 228 et seq. (1994). 131. Discussed in Anne C. Dailey, Federalism and Families, 143 U. PA. L. REV. 1787, 1817 (1995). See generally Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 19 IOWA L. REV. 1073, 1095-97 (1994) (examining federalism concerns).

132. United States v. Hopper, 899 F. Supp. 389, 393 (S.D. Ind. 1995); United States v. Murphy, 893 F. Supp. 614, 616-17 (W.D. Va. 1995); United States v. Hampshire, 892 F. Supp.

1327, 1329-30 (D. Kan. 1995).

133. Safe Homes for Women Act of 1994, 18 U.S.C. §§ 2261-2266 (1994) (making domestic

abuse a federal crime when the perpetrator crosses state lines).

134. U.S. CONST. amend. XIV: "The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article."

135. Howard M. Metzenbaum Multi-Ethnic Placement Act of 1994, 42 U.S.C. § 5115a (1994) (prohibiting state agencies from denying foster or adoptive placement~ solely on the basis of race). See also Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1994) (that implements the full faith and credit clause of the Constitution (U.S. Const. art. IV) by extending full faith and credit standard to child custody determinations). See generally Walter W. Cook, The Power of Congress Under the Full Faith and Credit Clause, 28 YALE L.J. 421 (1919).

136. Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5107, 5116, 5118 (1994) (establishing comprehensive federal program directed toward the prevention and treatment of child abuse and neglect); Child Support Enforcement Act, 42 U.S.C. §§ 651-669 (1994) (establishing national program to aid states in developing and implementing child support enforcement policies and procedures); Family Violence Prevention and Services Act, 42 U.S.C. §§ 10401-10418 (1994) (providing federal funding to states to address the problem of family violence).

137. 33 U.S.C. § 1251 et seq. (1994). The discharge of dredged or fill material into navigable waters without a permit violates the Act, which defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Environmental Protection Agency and the Corps of Engineers have adopted regulations defining "waters of the United States" to include numerous bodies of water including wetlands. 33 C.F.R. § 328.3(a); 40 C.P.R. § 230.3(s).

138. See Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir. 1993). 139. See Thomas Lundmark, The Clean Air Act Today, 27 AMERICAN STUDIES NEWSLETTER

I (1992).

140. See Missouri v. Holland, 252 U.S. 416 (1920). 141. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). See generally Paul M. Orbuch & Thomas

0. Singer, At Particular Risk, THE ENVIRON. FORUM, July-Aug. !995 at 28.

142. 42 U.S.C. § 4321 et seq. (1994). 143. U.S. CONST. art. I, § 8, cl. 1, discussed supra notes 32 through 40. 144. 30 U.S.C. § 1201 et seq. (1994). 145. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., (1981). 146. Dailey, supra note 131, passim. See also Comment, Abusing the Power to Regulate: The Child Support Recovery Act of 1992, 46 CASE W. RES. L. REV. 935 (1996). See also Lopez, 115 S. Ct. at 1634, (referring to "a distinction between what is truly national and what is truly local" (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. I, 30 (1937 . Lopez does not succeed in making this distinction. McJohn, supra note 6, at 36.

147. Donald H. Regan, How to Think about the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 passim (1995). Compare Bermann, infra note 148, at 452-53: "[S]ubsidiarity systematically places the burden of proof on the proponents of Community action."

148. George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Com-

munity and the United States, 94 COLUM. L. REV. 331, 339 (1994). Subsidiarity promotes the (sometimes overlapping) virtues of self-detellilination and accountability, political liberty, flexibility, preservation of identities, diversity, and respect for internal divisions of component states. /d. at 340-43. The apparent purpose was to ease fears that greater legal and political integration of Europe would needlessly trample claims to self-governance and cultural diversity. /d. at 334.

149. BERMANN ET AL., supra note 82, at 47. 150. Perhaps because the principle of subsidiarity was imposed on the Germans by the Allies, it has never been taken seriously by the Federal Constitutional Court. See CURRIE, supra note I 03, at 42-49.

151. Grundgesetz fiir die Bundesrepublik Deutschland arts. 74 and 74a, I Bundesgesetzblatt I (1949), as amended. An English translation can be found at CURRIE, supra note 103, App., at 370-72.

152. Grundgesetz, supra note 151, art. 72 (translated by the author). An English translation

can be found at CURRIE, supra note 103, App., at 369.

153. Maastricht Treaty on European Union art. G(5), adding a new Article 3b to the Treaty Establishing the European Community. O.J. C 224/1 (Aug. 31, 1992). The text of this treaty is also found as an appendix to BERMANN ET AL., supra note 82, at 246 (1995 SUPP.).

154. The Treaty on European Union came into force on November I, 1993. BERMANN ET AL.,

supra note 82, at 2 (1995 Supp.).

III. CoNCLUSION

155. The final paragraph of the new Article 3b expresses what is commonly known as the principle of proportionality. The principle of proportionality holds that "the individual should not have his freedom of action limited beyond the degree necessary for the public interest." Case 11170, lnternationale Handelsgesellschaft GmbH v. Einfuhr-und Vorrat.~stelle fur Getreide und Futtermittel, 1970 E.C.R. 1125, 1127, [1972] C.M.L.R. 255,256. See generally Derrick WYAIT & ALAN DASHWOOD, EUROPEAN COMMUNITY LAW 89-91 (3D ED. 1993). The U.S. Constitution's "necessary and proper" clause (U.S. CONST. art. I, d. 18) is not read to impose any comparable limitation on Congress. See McCulloch v. Maryland, 17 U.S. 316, 423 (1819).

156. Bermann. supra note 148, at 406. 157.

!d. at 403. Professor Bermann's article preceded the Supreme Court's decision in Lopez,

but does cite the opinion of the Court of Appeals. See id. at 417.

158. "The Tenth Amendment, whose breadth lend~ it only a superficial resemblance to the

principle of subsidiarity, simply cannot be read as subsidiarity's U.S. counterpart." !d. at 423.

159. U.S. CONST. art. I, cl.18, mentioned in supra note 155. 160. See Griswold v. Connecticut, 381 U.S. 479 (1965) (The "specific guarantees in the Bill of Right~ have penumbras, formed by emanations from those guarantees that help give them life and substance'').

16 L There were very few prosecutions under the Gun-Free School Zones Act. See Note, Federal Gun Control in the United States: Revival of the Tellth Amendment, 10 ST. JOHN'S J. LEGAL CoMMENT. 151 (1994). For another case that reached the appellate courts, see United States v. Edwards, 13 F.3d 2'l1 (9th Cir. 1993).