Jones v. United States (99-5739) 
178 F.3d 479, reversed and remanded.



                    Commentary

                        Jon Roland

This is the second of two key cases decided in 2000 that follow up on 
and emphasize the significance of the 1995 decision in U.S. v. Lopez, 
514 U.S. 549, the first being U.S. v. Morrison, Docket 99-5, which 
signal the dismantling of the efforts by successive national 
administrations since 1937 to seize police powers under the alleged 
authority of the Commerce Clause. In Morrison, the court overturned a 
statute allowing a citizen to seek civil damages for a crime for which 
the state had criminal jurisdiction, under the alleged authority of both 
the Commerce Clause and the 14th Amendment, but the court, by a bare 5-4 
majority, took the position that rape of a civilian does not have a 
significant effect on interstate commerce, and that the 14th Amendment 
only authorizes federal action against actions by state agents. In this 
case, Jones, a now unanimous court strikes down a federal statute 
against arson (within state territory), for the limited case of a 
private residence, which they hold does not have a significant effect on 
interstate commerce, and thus does not meet the established standard for 
considering a federal statute to be authorized under the Commerce 
Clause, but Justices Thomas and Scalia send a signal in their brief 
concurring opinion that they would not support the statute for a 
commercial building, either.

Each of these cases came to the Supreme Court based on argument that 
cited Lopez, thus showing the significance of that case. These cases now 
provide precedents on which the entire gamut of federal criminal cases 
based on an expansive interpretation of the Commerce Clause are now 
subject to challenge, and is likely to lead to a flood of cases, some of 
which will make it to the Supreme Court, especially if the next 
president fills vacancies with justices whose philosophies are similar 
to those of Justices Thomas and Scalia. That makes the outcome of the 
next election more important than any election since 1932. Enough such 
decisions and the federal courts may begin to unravel the entire New 
Deal.

The next step is likely to be to grant certiorari on a criminal case 
involving a commercial building. That would open the door for an appeal 
of the conviction of Timothy McVeigh on grounds of a lack of federal 
jurisdiction, since the Murrah Building in Oklahoma City did not stand 
on territory ceded to the exclusive legislative jurisdiction of Congress 
under Art. I Sec. 8 Cl. 17, and thus was only a commercial building. 
That would leave the question of whether killing a federal agent has a 
substantial effect on interstate commerce. Eventually, the Court might 
get to the point where they maintain that the power delegated under the 
Commerce Clause only applies to commerce itself, and not to anything 
that has a substantial effect on it. That would lay the basis for 
excluding farming, fishing, mining, manufacturing, retail trade, 
possession, and use of anything. They might also eventually recognize 
that the original understanding of "commerce" only included transfers of 
ownership of commodities, and not services or information, and does not 
authorize criminal penalties, only civil penalties. Eventually, it might 
overturn the wrong precedents in McCullogh v. Maryland, 17 U.S. 316 
(1819) and Gibbons v. Ogden, 22 U.S. 1 (1824).

The problem, however, is that even under a Republican administration, 
based on previous performance, Congress is likely to enact more 
unconstitutional federal criminal legislation faster than than the 
federal courts can strike them down. The Supreme Court can't do it all 
by itself. It needs the support of the people for a return to strict 
compliance with the Constitution according to the interpretative 
standards of Jefferson and Madison.




