Rape, Slavery, Booze,
and Interstate Commerce

June 6, 2000

The U.S. Supreme Court created a mild panic among liberals when it ruled, a few weeks ago, that the Commerce Clause of the Constitution is finite. In striking down the Violence Against Women Act, which authorized women to sue their rapists in federal courts, a narrow majority of the Court took the reactionary radical right-wing position that rape is not a form of interstate commerce.

Four members of the Court, the dogged liberals, said it was too, even if the victim isn’t lying across the state line. Why? Because for liberals, nearly every known human activity qualifies as interstate commerce and is thus subject to federal control.

One angry critic of the ruling is Peter Shane, professor of law at the University of Pittsburgh: “Yes, it is common sense that rape is not commerce. But it is hardly common sense that Congress’s power to promote commerce is so limited that it cannot legislate against a practice that costs the national economy billions of dollars annually, including the burdens of absenteeism and lost productivity.” Since rape victims often miss work, you see, rape “costs the national economy billions of dollars annually” (Mr. Shane gives no source for this figure, if it matters); ergo rape falls within the scope of “interstate commerce.” That’s “common sense”!

To start at the beginning, the Constitution says tersely that “Congress shall have power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Since the New Deal, the four words “among the several States” have been expanded to comprehensive, virtually socialist dimensions. The Court once ruled that a farmer who raised grain on his own land to feed his own cattle was subject to the interstate commerce power!

Now it stands to reason that if the phrase “among the several States” was meant to create a power of such breadth as to nullify, in effect, the rest of a Constitution of limited powers, someone would have noticed it before the era of Franklin Roosevelt. The Framers of the Constitution, the Federalists, and especially the anti-Federalists would certainly have called attention to it. But nobody suspected that it meant what today’s liberals insist it means.

Certainly Abraham Lincoln never suspected it. He hated slavery, and the huge slave trade would fit the category of interstate commerce, even by liberal standards, better than rape or raising cattle. Why didn’t he argue, at the very least, that the federal government could outlaw slavery “among the several States”? On the contrary, he conceded in his first inaugural address that the federal government had no power to touch slavery where it already existed! Even when he issued the Emancipation Proclamation, he justified it as an executive war measure but still acknowledged that Congress had no legislative power to enact it. (And the Proclamation applied only to the seceding states, not to the slave states that remained within the Union.) It took a constitutional amendment to outlaw slavery throughout the United States.

The same was true of liquor. The liquor industry was certainly a form of commerce “among the several States,” but everyone understood that it could be prohibited only if the Constitution was amended. So the Eighteenth Amendment was adopted, giving Congress the power to ban liquor sales. Why should that have been necessary, if the power to “regulate Commerce ... among the several States” was comprehensive? Obviously nobody thought that power was broad enough to permit Prohibition by mere act of Congress. Why amend the Constitution to authorize Congress to do what it was already authorized to do?

By the same token, the repeal of the Eighteenth Amendment by the Twenty-first Amendment should have made no real constitutional difference. Under the broad reading of the power to regulate interstate commerce, Congress can still ban all liquor sales if it wants to.

Some people don’t mind a little constitutional sophistry in a good cause; and for liberals, centralizing all power in the federal government is always a good cause. Since most Americans don’t know or care what the Constitution says, let alone what their ancestors thought it meant, the great liberal snow job has been very successful.

Joseph Sobran

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