Reading Excerpts from U.S. v. Lopez | A Primary Source Close Read w/ BRI

0:03 Hello everyone, and welcome to today’s Close Reading episode. My name is Josh, and I’m excited to be joined by BRI’s resident scholar Tony Williams. Hey Tony. Hey Josh how are you? Doing well, thanks. So in today’s episode, we’re going to be taking a look at some excerpts from the Supreme Court case of US V.

0:26 Lopez. So this case involved a student bringing a firearm on school grounds. But it’s important to note that it was not about the second amendment. Instead, it was about the commerce clause of the constitution. So in order to get started, Tony, I’m going to pull up my slide so we can have the text of the commerce clause.

0:51 And I’d appreciate it if you could talk about what exactly the commerce clause is and how it relates to the constitutional principle of federalism. Right. Well, as you can see on the screen, the commerce clause resides in article one, section eight, and it says, congress, I have the power.

1:12 So this is congress. This is a national power and legislative power. And it empowers congress to regulate commerce with foreign nations, with other countries, among or between the several states, and with the Indian tribes. The most relevant thing I think to say

1:32 about that, especially regarding US V. Lopez, is that congress has the authority to regulate interstate commerce trade between states, and the states themselves have the power to regulate trade within its borders. Okay. And that’s called entrust within the state trade.

1:58 And how that relates to federalism itself is the principle that each level of government has certain powers and they also have some shared powers. So the power to regulate interstate commerce would reside with the national government, the power to regulate interstate

2:20 trade within the state that would reside in the states. And that is literally an example of federalism that each level of government is exercising its own powers. Great. Yeah, it’s essential that we understand the commerce clause before we get into the actual case.

2:43 So a bit of background on what happened. Alfonso Lopez was a 12th grade student. He attended Edison High School in San Antonio, Texas. He carried an unloaded revolver and some ammunition onto his school grounds,

3:04 which school officials were notified about through an anonymous hit. Lopez was arrested and charged with violating a Texas law. However, those charges were dropped and he was later charged with a violating federal law, specifically the gun-free school

3:25 zones act of 1990, which made it a crime to carry a gun on school grounds if you were unauthorized or to have a gun within 1000ft of school grounds. So in federal district court, that court decided that Lopez did violate

3:46 that law and that that law was a legitimate exercise or a legitimate reading, I should say, of the commerce clause. They determined that because education is so connected with commerce, specifically interstate commerce,

4:07 so it affects the national economy, that the law was constitutional. Now, the case then went to a court of appeals and they actually ruled the opposite. They said, no, this law is actually unconstitutional. The state should be regulating this. Finally, it went to the Supreme Court

4:28 and they ruled in a five to four opinion in favor of Lopez. So ultimately they decided, no, this is an unconstitutional law. So we have here some excerpts from Chief Justice William Rehnquist’s opinion. Tony, what stands out to you about the wording?

4:51 What does he emphasize here with these quotes? Yeah, and I think what Rehnquist is saying here as I’m reading it is that he’s really opposed to the way that Congress has exercised its power to make law under

5:13 the Commerce Clause for the previous 60 years. He is basically saying if we accept this law regulating a handgun possession near a local school or within a local school by the federal government, by Congress, he’s basically saying

5:34 in that last sentence, we’re hard pressed deposit any activity by an individual that Congress cannot regulate. Right. He’s basically saying this is such an expansive reasoning or an exercise of Congress’s power under the Commerce Clause that it basically provides unlimited power to Congress to regulate anything even within the states.

6:01 Yeah, no, that’s great. And then we also have here Justice Thomas wrote a concurring opinion and he echoes that exact same sentiment, this idea that police powers should be left to the states. Now, by police powers we mean generally.

6:24 In the past, the states were responsible for regulating things like health, morality and crime. Three of the broadest examples of police powers and Justice Thomas here argues that commerce specifically carrying a gun on school grounds,

6:48 falls under the state authority of police powers. So we’ve looked at the majority and concurring opinion here. Now let’s take a look at the dissent opinion. Well, let’s get back to Thomas because I think that’s actually a really important thing to dial in on, that Thomas is basically trying to get at what is commerce?

7:12 Right? Because if Congress has the ability to regulate interstate commerce, then one needs to decide is it actually interested commerce or whether it’s happening within the state. And the really important question is what is commerce, right? Is it trade? Is it goods and services going across the state line?

7:35 And what Thomas says is that carrying a handgun near schools may be a bad idea. It may have led to people getting hurt, even children getting hurt, but he says it’s just not commerce, right? It’s not trade, and it’s certainly not trade across the state line.

7:56 And so he’s trying to examine whether the packs of the case are related to an understanding of what commerce is. Yeah, no, that’s great question. Right. This is somewhat debatable.

8:18 There’s some blurry lines. But the question is, is this interested commerce? And Thomas says by any reasonable interpretation, it’s not, right? Yes. And that’s really the heart of the issue where the two sides disagree is how much can we say that education affects commerce?

8:41 How wide of a sphere do we want to grant it? And obviously Justice Thomas and the majority argue that we don’t want to stretch that too far. And then the dissenting opinion is obviously going to argue that, no, this is actually very intertwined.

9:04 Here we have Justice Breyer’s opinion. Education, although far more than a matter of economics, has long been inextricably intertwined with the nation’s economy. So there’s such a connection between education and the nation’s economy that Congress has a legitimate

9:27 and compelling interest to regulate guns specifically on school grounds. Right. It seems to me anyway, we can argue about it. We encourage the students and teachers to debate this.

9:48 But the question is this seems to me like a pretty tortured reading of the Commerce clause. Are kids going to a local public school and learning and eating lunch and going to gym class and going about their ordinary day? Is that interstate

10:08 commerce? I know I’m not really seeing it. It seems to be pretty tortured. I mean, you really have to make an extensive link. And I think that’s what the majority opinion is pointing out is that you really have to go sort of 20 steps removed to get from kids going to a local

10:32 public school on a Monday or Tuesday and interstate commerce. Sure. Yeah. One thing that also stands out to me about Justice Breyer’s opinion is his emphasis on social science. So in this top quote, he talks about reports,

10:54 hearings and other readily available literature makes clear that the problem of guns in and around school is widespread and extremely serious. So this idea that we’re not just going to look to the word of the Constitution, we also need to look at studies and see

11:17 what impact does the issue at hand have on American society? I know that this idea of looking at social science is nothing. New. It had been used by the Court in previous cases. And I know you actually just talked to a scholar, Tony, in a different webinar,

11:39 which we can link to in the description here below, about out that idea of abusing social science, specifically in the case of Brown Bee Board of Education. So could you talk a bit about what that idea is? What connections are there between specifically maybe Brown and this case?

12:01 Yeah, you make some great points, Josh, that these reports, hearings, readily available literature, the use of social science is not something new in the Court. We can go all the way back to the Progressive Era, the early 1900, with cases like Lockner versus New York

12:21 and the Brand Ice Brief and several other cases over a couple of decades that the Court starts to get involved in using social science to regulate working hours or child labor and other kinds of social problems that were spawned by industrialization during the Progressive Era.

12:46 And the Court uses social science in determining the outcome of cases. As Philip Munoz, our good friend, pointed out in our discussion and our scholar talk, the Warren Court accelerated the pace of using social

13:08 science in cases, particularly in Brown V. Board. And there was a famous Doll study and other studies that are referred to, but other cases as well, most notably, I think, also in Roe versus Wade with the creation of the Trimester system. And so the core has a long history of doing this.

13:30 And I think as scholars and we encourage teachers and students to do this as well, is to ask questions about that. Is that the responsibility of the Court to use social science in determining the outcome of the case, or should it really stick to the Constitution? Should it stick to the law and precedent?

13:54 I think I have no problem with the use of social science by the Congress in formulating laws and making laws or the executive branch in terms of making policy. But those are the political branches and they should hear social science. And by the way, social science doesn’t always agree.

14:16 And so they can, I think, very easily and appropriately look at different studies and look at conflicting ideas about what economists or social scientists, sociologists, historians are saying about a topic. But I’m not sure that that’s the correct purview of the Court responsibility.

14:38 But I think that will lead to some good risks for discussion in the classrooms of our viewers. Yeah definitely. And I think it’s important to note, well, the majority opinion definitely places a far stronger emphasis on constitutionalism.

14:58 We can also see some constitutional arguments here. Justice Breyer obviously is arguing that this is within the legitimate reaches of the Commerce Clause. So it’s not just social science he’s trying to make make a constitutional argument as well. And I think Justice David Soder’s opinion

15:21 also echoes that trying to find some connection to the Constitution. We have some quotes here that are really emphasizing judicial restraint. So this idea that we don’t want to legislate from the bench, we want to let Congress do that,

15:43 and then it’s our job to determine the constitutionality. It’s interesting because generally you hear conservative justices talk more about judicial restraint, but here we have Justice Souter, who is more of a liberal justice, talking about that very concept.

16:04 So what’s your take on this, Tony? Well, I think there’s a fascinating history behind this, right? Because the Court around the Gilded Age progressive era, up through the New Deal, was typically seen as more conservative, as exercising judicial restraint, not as deferring to the political branches in terms of making law and policy.

16:30 The New Deal, especially around the time of the Court packing plan by FDR, changes and becomes more liberal, right? And it exercises these powers on the Commerce Clause very expansively from 1937 to US.

16:51 Versus Lopez in 95. And conservatives would say that was actually judicial activism by the courts, and contrarily liberals would say the conservatives were acting with that.

17:12 They were the ones acting with judicial activism. And now you see this argument again that the liberals are attacking the conservatives for judicial activism rather than restraint. So we’ve sort of seen ebbss and flows, right? When you’re sort of on the losing end, either liberal or conservative, you accuse the other side of judicial

17:34 activism, and you’re the one acting with restraint. But then when you’re more in the majority, you’ll see yourself acting with judicial restraint and not acting with judicial activism. It’s been an accusation on both sides throughout the course of the 20th century.

17:55 So we’ve seen this ebb and flow of calls for judicial activism and restraint. Yeah definitely. I think that it’s really important to keep in mind what you’re saying, how both sides kind of throw that around. And just from a broader lens,

18:17 one thing that I think is really important to keep in mind as we look at Supreme Court cases is that the Supreme Court is not infallible. They frequently overturned past cases. So that shows us that at some point someone got it wrong, and we’re going to assume that they’re

18:38 going to continue to get it wrong as they continue to overturn past cases. And that’s where I think it’s really essential that we as Americans continue to debate and discuss these cases. The Supreme Court is not the final arbiter of these issues. And while we have an obligation to

19:02 follow the rulings that the Supreme Court makes in the spirit of upholding the principle of rule of law, that doesn’t mean that we can’t disagree and that doesn’t mean that we can’t discuss these issues. One other important thing that I think we should keep in mind here is, especially in a time of polarization,

19:24 just trying to find the common language that both sides use. So specifically, federalism and judicial restraint stood out to me here as both sides talk about it. And it seems like both sides think it’s an important principle. And it really just comes down to different

19:44 interpretations of how much weight should we give the states, how much weight should we give the federal government in making these decisions? And then, of course, like you said, both sides like to accuse the other of partaking in judicial activism. So it’s obviously it seems like Americans don’t like judicial activism.

20:08 So I think that’s just important to keep in mind that while we might be polarized, we do have disagreements and they’re important disagreements. There’s still this common language. That’s a great point. And it reminds me all the way back in history back to the debate between Hamilton and Joe over the national bank.

20:30 Right. Hamilton proposed a national bank and Washington and the Cabinet weren’t sure about it. Washington solicits his opinions from the other cabinet officers and then eventually makes up his mind. Congress passes the bill and Washington signs it, and eventually the Court will

20:51 say it’s constitutional in McCullough V. Maryland. But there was a fierce debate. And what I love about that debate is that it was constitutional, right? That they both looked to the necessary and proper clause. Section eight. They both looked throughout article on Section Eight for the powers to establish a bank, and they had different interpretations of it.

21:13 Hamilton read it expansively and said that property clause allows a bank. And Jefferson read it a little more restrictively and said, no, Congress doesn’t have that power. And that’s the amazing thing about the American Republic, is that some people can look at an issue,

21:34 a constitutional issue, and come to different conclusions. Right. And as citizens, we need to read each of those different opinions and formulate our own ideas about who is right. And you’re right. The Court, Congress, the President, they won’t always get every decision right, but it’s proper to have that debate

21:55 within the confines of constitutionalism and American principles. That makes for a healthy, vigorous debate, even when we disagree a little bit. Definitely. Well, Tony, it was great having you on. I really enjoyed talking about this case with you. Right. I loved it too. Josh. Thank you all for joining.

22:16 It’s a fascinating and very important case to talk about teachers and students in their classrooms. So I think it’s a great conversation. Definitely. And we are going to be having a home workout video on the case of US V. Lopez released, which can be linked below here in the description.

22:38 So be sure to check that out if you’d like further information on the details of the case to share with your students until the next episode. Thank you so much for tuning in.