Why Does HSLDA Oppose the RLPA?

Many fine Christian organizations are calling their constituents to urge them to vote for the Religious Liberty Protection Act (RLPA). The Home School Legal Defense Association, however, is urging its members to call Congress to say “We support religious liberty but we oppose linking religion and commerce under the RLPA.” Why is HSLDA so opposed to the “commerce” part of RLPA?

That is a big question. To understand it, one needs a grasp of American history, constitutional law, and current events. Fortunately, home schoolers tend to be willing to dig into big issues and figure out the answers. In a world of bumper stickers and sound bites, home schoolers are unusual citizens—but because they think hard and work hard, they are also unusually effective citizens. This document provides background information so that home schoolers can make their own informed judgments.

Big Government is a Big Problem

Our Founding Fathers set up a strong central government with the power to address those issues that affect the nation as a whole. They insisted, however, that this new government leave other matters to the states and to the people.

Unfortunately, modern politicians and judges have lost that vision of a strong but limited central government. For example, in our effort to build Patrick Henry College, we are being told by the federal court that we must build a new swamp because we are disturbing less than two acres of cattails by building a pond. Employers cannot fire a disgruntled worker without fearing a federal employment discrimination suit. Small businesses are forced to adhere to hundreds of federal mandates and regulations. The federal government now takes in more than a trillion dollars each year; the federal debt is over five trillion dollars; and the federal bureaucracy invades every nook and cranny of American life.

How could Congress take such control of matters that were not intended to be the federal government’s business? It has done so largely by expanding its power to “regulate commerce among the States.” The legal reason Patrick Henry College has to build a new swamp is because the courts claim that cattails and mud affect interstate commerce. Every American needs to understand what effect this has had on our life and liberty. Original Intent: Congress’ Exclusive Power over Interstate Commerce

Control of interstate commerce was a crucial part of the Founders’ plan for a new central government. They wanted to eliminate the economic bickering and dirty tricks that had long plagued relationships between the colonies. They accomplished this by creating federal power to regulate interstate commerce in Article I, Section 8 of the Constitution. This federal power was put to the test when New York State granted a monopoly to a steamboat company that ran a ferry from New York to New Jersey.

The Supreme Court struck down that monopoly in Gibbons v. Ogden, 22 U.S. 1 (1824). This was a great step forward for the American free market. State legislatures had lost the power to shut out competitors from other states. Chief Justice John Marshall, who wrote the opinion in this case, spelled out a clear and comprehensive understanding of Congress’ power over interstate commerce. Congress had the exclusive power to regulate all commercial activities that affected more than one state. This left non-commercial activity outside the powers of Congress altogether, and it left those commercial transactions that took place completely within a state to the free market or to that state’s legislature.

The New Deal: Expanding Federal Power

The central vision of limited Commerce Clause power lasted until Franklin Delano Roosevelt’s presidency in the 1930s. Under FDR’s New Deal, the federal role ballooned out of all recognition. During FDR’s first few years in power, the Supreme Court struck down one New Deal law after another, holding again and again that they exceeded Congress’ constitutional powers.

Roosevelt became so frustrated with the Supreme Court that in February 1937 he proposed legislation which would increase the number of Supreme Court Justices from nine to fifteen. As President, FDR would get to nominate six new justices who would uphold his new laws. Under the threat of this plan, one judge — Justice Roberts — began to vote for, rather than against, FDR’s legislation. That made all the difference.

It soon became evident that Congress could do almost anything it wanted under the expanded theory of the Commerce Clause. In 1942, the Supreme Court ruled against a farmer who grew his own wheat on his own land and fed it to his own chickens and cows. Wickard v. Filburn, 317 U.S. 111 (1942). Even though he never sold the wheat, much less across state lines, by not buying wheat from other farmers, he had affected interstate commerce enough to bring him within the new scope of the Commerce Clause. From that moment, most legal scholars assumed that Congress could assert power over virtually anything under the Commerce Clause.

Today: Commerce Power over Everything

Congress now regulates almost anything under its power to regulate “commerce among the states.” For example, many years ago, a California company dug pits that it would fill with seawater and then let evaporate, leaving salt. Today, the pits still stand on company land, but they collect enough rainwater to occasionally attract migratory birds. No humans are known to visit these salt pits or even photograph the passing birds. The Ninth Circuit Court of Appeals wrote, “The migratory bird rule certainly tests the limits of Congress’ commerce powers and, some would argue, the bounds of reason.” Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 (9th Cir. 1995). Even so, that court still ruled that the occasional presence of migratory birds in these empty pits was enough of a connection to “interstate commerce” to bring the matter under federal control.

Congress thinks its power over commerce among the states gives it power over rape within a state. In 1994, Congress enacted the Violence Against Women Act, or VAWA. This new law creates a federal right to sue a person who “commits a crime of violence motivated by gender.” 42 U.S.C. Section 13981(c). At least one court thinks Congress has gone too far, however. The Fourth Circuit recently ruled that Congress could not assert Commerce Clause power over an alleged “date rape.” Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820 (4th Cir. 1999). That case has been appealed to the United States Supreme Court.

Home schoolers, more than any other single group of Americans, understand and fear the implications of unlimited Commerce Clause power.

The threats to home education are far from over. The NEA has an enormous amount of power, especially with President Clinton and the federal Department of Education.

H.R.6, introduced in 1994, would have required “all teachers” to be state-certified. Over a million calls flooded Washington as home schoolers successfully fought off federal control. H.R.6’s ban on uncertified home schooling was based on the Commerce Clause.

Since that time, home schoolers have been at the very forefront of efforts to limit federal power over education. The best limits on federal powers are those that our Founding Fathers intended. That means limiting Congress’ Commerce Clause power to actual interstate commerce, like ferry boats between states. Non-commercial education in private homes must never be allowed to come within the scope of Congress’ Commerce Clause power. Home schoolers will do whatever it takes to make sure of that.

Why Should Conservatives Distrust the Commerce Clause?

Business and property owners are all too familiar with the intrusive reach of the federal government. Each time the federal government adds more paperwork, more red tape, or more oppressive regulations, the Commerce Clause is usually the culprit.

Businessmen are not alone in opposing Commerce Clause power, though. Proposed legislation known as the Employment Non-Discrimination Act, or ENDA, would prohibit private employers from discriminating against homosexuals. What is the basis for this bill? Congress’ power to regulate interstate commerce, of course.

Gun owners are all too aware of the federal government’s ever-increasing infringement of the right to bear arms. Not all gun owners are aware, however, that the federal government’s power to control guns comes only from the Commerce Clause. When Congress enacted federal legislation that banned mere “possession” of a gun within 1000 feet of a school, it finally went too far. The Supreme Court struck down that law, holding that Congress had not suggested any connection between mere “possession” of a gun at a certain place and “interstate commerce.” United States v. Lopez, 514 U.S. 549 (1995). Congress promptly adopted the Gun-Free School Zones Amendment of 1996, which now regulates any “gun which has moved in or affects interstate commerce.” 18 U.S.C. Section 992. The Commerce Clause gives Congress the power it needs to take away important liberties.

Why Should Conservative Activists Avoid the Commerce Clause?

For years, political activists have turned to the Commerce Clause when they want to pass sweeping legislation. Liberals see it as a broad grant of power to Congress to advance almost any legislation they support. They treat “interstate commerce” in its broadest possible sense, including any kind of human activity that might affect someone or something that could conceivably cross state lines at some time. Thus, even though a particular endangered field mouse may never travel more than 20 miles from its native sand dunes in Southern California, environmental activists would protect it under the “interstate commerce clause.” Hillary Rodham Clinton proposed to take over American health care — one seventh of our national economy — using Congress’ power to regulate interstate commerce. Homosexual activists see the Commerce Clause as their fastest way to prohibit private discrimination.

Conservatives should hesitate to step into this constitutional quicksand. There are three reasons to steer clear of expansive new Commerce Clause legislation: (1) it is wrong, (2) it is dangerous, and (3) it invites the Supreme Court to strike it down. It is wrong because it flies in the face of our Founders’ notion of limited government. It is dangerous because it expands congressional power over private citizens who are not engaged in commercial activity that crosses state lines. And the Supreme Court really is quite likely to strike it down.

Justice Clarence Thomas has given ample warning that there is trouble brewing over the Commerce Clause. Thomas was part of the Supreme Court majority that ruled that mere gun “possession” did not affect interstate commerce, and in his concurrence in Lopez, he expressed his profound concern about the current state of the law. He wrote:

Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause…. [I]t seems to me that the power to regulate “commerce” can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination. Lopez, 514 U.S. at 584-85 (Thomas, J., concurring).

Why the Commerce Clause Should Not Be Used to Protect Religion

If the Supreme Court ever does cut back on the bloated powers of Congress, conservatives and constitutionalists should cheer. It will mark a real return to the original intent of our Founders, and it will protect vast areas of American life from the intrusive reach of the federal government. We won’t be able to cheer, though, if we put our legislative eggs in the Commerce Clause basket. That is the risk we take, though, if we use the Commerce Clause to protect religious liberty.

The Religious Liberty Protection Act (RLPA), HR 1691, protects the free exercise of religion “in any case in which the substantial burden on the person’s religious exercise affects . . . commerce with foreign nations, among the several States, or with Indian tribes.” RLPA Section 2(a)(2). This is a direct reliance on the Commerce Clause.

Relying on the Commerce Clause to protect religious liberty is both wrong and foolish. It is wrong because the end does not justify the means. Congress should not use the Commerce Clause to govern non-commercial activity, whether it acts to help or harm that activity. Protecting religion is a noble goal, but protecting it under the Commerce Clause cheapens religion and distorts the Constitution

Protecting religion under the Commerce Clause is foolish because it invites a swift and well-deserved rebuke from the Supreme Court. The Supreme Court has struck down religious liberties twice in the last decade. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court ruled that the First Amendment did not protect religious believers from “facially neutral, generally applicable laws.” Then, when Congress enacted the Religious Freedom Restoration Act in 1993, the Supreme Court struck it down, too, in City of Boerne v. Flores, 521 U.S. 507 (1997).

Basing religious liberty on the Commerce Clause now is just asking for trouble. Justice Thomas gave fair warning in Lopez. “Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination.” Trying to protect religion under the Commerce Clause virtually guarantees a “lose-lose” result. The Supreme Court is certain to review such legislation, and it must either uphold a dangerously expansive view of the Commerce Clause or send religious liberty down for the third time in a row.

Conclusion

The Commerce Clause has been the darling of liberal activists, who believe big government has all the answers. Our Founding Fathers knew better. They wrote a Constitution that created a strong but limited federal government, and they took those limits seriously. Religious liberty is the most important liberty we know, yet it cannot justify legislation that we know our Founding Fathers would reject.