Mises University this year featured a “conference within the conference”. The distinguished jurist and television commentator Judge Andrew Napolitano offered a course of five lectures on “The Growth of the Commerce Clause as an Instrument of Federal Power.” Judge Napolitano presented a masterful survey of how the Supreme Court has interpreted the commerce clause, from Gibbons v.Ogden (1824) to the present. In clear defiance of the plain meaning of the constitutional text, the Court expanded the scope of the clause so that the power of Congress to regulate the entire economy had by the 1940s become little short of plenary. Wickard v. Filburn (1942) was perhaps the culminating case in this sorry record of biased construction. Fortunately, the Court has recently indicated some willingness to recognize limits to the power of Congress in this area. In his final lecture, Judge Napolitano noted that in its recent opinion upholding the individual mandate of Obamacare as an exercise of the taxing power, the Court also held that use of the commerce clause for this purpose was unconstitutional.
Judge Napolitano followed the Socratic method in teaching the course, but he was a Socratic interlocutor of great kindness, and it was clear that he had won the hearts of his students. His impressive command of the intricate legal issues at stake was everywhere apparent, and no less apparent was his devotion to individual liberty.