Is Education Commerce?

The perennial debate in this country concerning matters constitutional is the manner in which the US Constitution should be interpreted. Some citizens hold that the Constitution should be narrowly and strictly interpreted while others use terms like “living, breathing document” to describe a Constitution that flexibly changes with the times. People who hold the latter view enjoy the power inherent in supporting laws that favor their causes, laws that might not be acceptable under a narrower, stricter interpretation of our founding fathers’ document. The Commerce Clause of the US Constitution was written to regulate interstate commerce, or commerce between the states, but a broad interpretation of the word “commerce” has led to court decisions related to intrastate commerce. An even broader view has led to Commerce Clause decisions concerning issues with only a tenuous connection to commerce. It is only a matter of time before those who hold the broadest possible interpretation of “commerce” will attempt to use the Commerce Clause to control education, and possibly eliminate homeschooling.

Set aside for a moment the fact that Amendment X of the US Constitution states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Set aside for the moment the fact that the Constitution does not specifically address education in the United States of America, and that under the Tenth Amendment the power to regulate education is reserved to the states. These obvious facts have not stopped legislators from attempting to enact laws regulating education at the federal level. The Tenth Amendment has not stopped legislators from using a broad interpretation of the Commerce Clause to enact laws that do not directly address interstate commerce.

The Supreme Court of the United States has ruled in both directions on cases resting on the Commerce Clause, sometimes supporting broader interpretations and holding a more rigid position in others. In 1905, SCOTUS halted price fixing in the Chicago meat industry, finding that “business done even at a purely local level could become part of a continuous “current” of commerce that involved the interstate movement of goods and services” (1). In Katzenbach v. McClung, SCOTUS ruled against a family owned business, one restaurant, writing that “although most of Ollie’s customers were local, the restaurant served food which had previously crossed state lines” (1). In Leslie Salt Co. v. United States, the Ninth Circuit Court of Appeals “ruled that the occasional presence of migratory birds in these empty pits was enough of a connection to “interstate commerce” to bring the matter under federal control” (2). The Rehnquist Court restricted the interpretation of the Commerce Clause in 1995 in Lopez v. United States, when congress attempted to use the Commerce Clause to justify banning firearms in schools.

Currently, the Commerce Clause is at the center of the debate over the constitutionality of the recent health care bill signed into law. Justice Kagan punted on the question of her interpretation of the Commerce Clause while under questioning from Senator Tom Coburn during her confirmation hearings. How broadly or narrowly our country’s legislators and our highest court interpret the Commerce Clause directly affects the amount of power they have to enact legislation affecting all areas of life. How soon will a broad interpretation of the Commerce Clause be used to regulate education in America? How soon will a broad interpretation of the Commerce Clause be used to make homeschooling illegal?

Homeschoolers must remain vigilant, always watching, always reading about, and listening to our representatives on Capitol Hill and the decisions handed down by our Supreme Court. Our selection of representatives both locally and nationally, as well as our choice for Commander-in-Chief, has long reaching consequences that will affect our freedom to pursue homeschooling. Homeschooling must remain a viable educational choice for all Americans.





1. http://topics.law.cornell.edu/wex/commerce_clause

2. http://www.hslda.org/docs/nche/000000/00000050.asp