In 1867, Congress criminalized the sale of oil that was made from petroleum, including transactions that were completed entirely within a single state. Mr. Dewitt was indicted for selling oil in Detroit, MI, and appealed his case to SCOTUS. SCOTUS held in US v Dewitt (1869) the Commerce Clause is a “virtual denial [to Congress] of any power to interfere with the INTERNAL trade and business of the separate states.” This rightfully articulated the limited authority of the federal government in matters of solely intrastate commerce. The one exception, SCOTUS held, is that Congress can interfere with internal trade when it is a “necessary and proper means for carrying into execution some other power expressly granted” in the Constitution.  Thus, when considering the scope of Congress’ authority regarding matters of commerce, the court must not only consider the Commerce Clause, but also the Necessary and Proper Clause.

In 1842, SCOTUS handed down the terrible decision in Prigg v Pennsylvania.  SCOTUS drastically expanded the federal government’s so-called power under the Necessary and Proper Clause, and made other unconstitutional rulings in this decision. But the one good thing to come out of this decision was that the court held states cannot be “compelled to enforce” the Fugitive Slave Act.  Rather, the national government is responsible for carrying into effect its own policies.  This limitation on congressional power became the foundation for the “anti-commandeering doctrine.” Thus, SCOTUS now holds that Congress lacks the power to “commandeer,” or force, states to implement federal programs.

In 1833, SCOTUS decided Barron v Baltimore, claiming the Bill of Rights only limited Federal power, not State power. The 39th Congress drafted the 14th Amendment, in part, to reverse the decision in Barron. However, we must look to the text itself for the answer on this issue. Yes, the 1st Amendment references “Congress shall make no…” but NONE of the other Amendments have such language. Nothing in the other initial amendments allows the States, while prohibiting Congress, from taking specified actions. Rather, the language of those Amendments focuses on the perspective of the person – and how the individual’s rights shall not be infringed. Period.