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    Should Laws be Taken Literally or in their Spirit?

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    Please answer the 5 questions in 200-250 words.

    The Commerce Clause Begins to Hit the Wall

    The powers of Congress are enumerated in Article 1 of the U.S. Constitution. Section Eight, the "commerce clause," reads: "To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes." The Founding Fathers gave Congress power over interstate commerce, not intrastate commerce: local manufacturing, farming, or sales. They wanted to prevent states from setting up trade barriers and imposing tariffs on out-of-state goods. It thus was meant to be a power primarily to facilitate free trade.

    And there it slept for decades. But with the New Deal of the 1930s, regulations went from strength to strength until a free-for-all application of the Commerce Clause permitted an unprecedented federal power grab. Subsequent court decisions interpreted the clause to grant Congress the power to regulate virtually everything that affects interstate commerce.

    Now there seems to be some serious second thinking going on. In 1995, the Supreme Court invalidated the Federal Gun-Free School Zones Act, which made it a federal crime to pack a gun to school. What did carrying a gun to school have to do with interstate commerce? The federal attorneys argued that carrying guns sometimes leads to violence, which can affect learning, and hence, the U.S. economy.

    The Supremes choked. Chief Justice William Rehnquist wrote: "If we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." The government lost by a vote of 5 to 4.

    In December 1997, the 4th Circuit Court of Appeals in Richmond, VA, reversed the 1996 conviction of real estate developer James J. Wilson for filling in some wetlands on his own property.

    A jury convicted him under the federal Clean Water Act, which forbids tampering with the "waters of the U.S." He got 21 months in prison and was fined $1 million.

    The EPA defined "waters" to include any wetlands, ponds, etc., whose degradation "could affect" interstate commerce. The Circuit Court ruled that the EPA regulation defining "waters" was too broad and therefore invalid. Thus, prairie potholes and vernal pools are really just puddles and not linked to any lakes or streams (and thus to interstate commerce).

    On May 15, 2000, the Supreme Court in a 5-4 ruling on U.S. v. Morrison invalidated a key section of the 1994 Violence Against Women Act (VAWA). This law allowed a victim of rape or other violence "motivated by gender" to sue the perpetrator for civil damages in federal court for violating her civil rights. What is the reasoning to tie rape to interstate commerce? Plaintiff lawyers stated that violence against women and fear of violence reduced women's productivity and mobility as employees. Also, women commonly lose their jobs after being so injured, it was argued. The Supreme Court disagreed.

    Sources: Brigid McMenamin, "Drawing a Line in the Sand," Forbes, March 9, 1998, pp. 100-101; and Wendy McElroy, "Does Rape Violate the Commerce Clause?" from Ideas on Liberty (Washington: Foundation for Economic Education, October 2000), and http://www.independent.org, the Web site of The Independent Institute, a conservative think tank.

    PLEASE ANSWER THE 5 QUESTIONS IN 200-250 WORDS: (combined total word count maxium is 250)

    1. Do these examples have anything to do with inalienable rights?
    2. Do these three cases represent a government failure?
    3. Do you think the government attorneys did a cost/benefit analysis before they took their action? What costs and benefits would they weigh?
    4. How do you think public-policy economists would view these decisions?
    5. Do you think it is time that courts continue to chip away at the Commerce Clause?

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    Solution Preview

    The frank answer here is yes they do. If I fill up a puddle in my backyard, the government has no business intervening given that my action does not lead to some other social repercussions. No government has the right to punish me for that. In case of carrying gun to the school it may be a moral issue with most people, and I think the state has a right to bar that, but definitely not in the name of interstate commerce! Same with rape. Howsoever heinous the crime is, it has nothing to do with interstate commerce!

    The three cases definitely represent failures ...