Skip to comments.FR Amendment Proposal: Limit Congress' Power Under the Commerce Clause
Posted on 07/15/2010 10:16:49 AM PDT by mukraker
We have a LOT of smart people at FR. I'd like to tap some of that brainpower, and come up with language to be included in a new Constitutional Amendment.
We've seen how all three branches of our government have perverted the Commerce Clause of our Constitution. (Article 1, Section 8) That clause reads "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"
The list of abuses of this clause is too long to enumerate here. Rather, I'd like to enlist your help to limit that power.
"The Power of Congress to regulate commerce shall be limited."
OK, there's the start. Now, how shall we limit that power? (Remember, keep it concise.)
You can not strike the commerce clause because it is necessary for the regulation of affairs between foreign nations, between the states and with the indian tribes - if the federal government does not have the power to regulate here, internation trade agreements must be made between the individual states and foreign governments - further each state would be required to make a trade agreement with every other state ....
Sovereign Immunity also protects office holders from frivolous lawsuits which would keep them from thier duties. Each branch has methods for revoking this immunity (not done often, i admit!!) - but they are there.
“General Welfare” - there aren’t a heck of a lot of laws “authorized” by this clause, so I doubt this would have an impact ....
Theoretically, yes. Again, it is jurisdiction. Which laws apply if a conflict arises between an out of state business and an in state actor? Look at banks - physicians, bonded tradepeople, etc ... such participants must be licensed in most states in orer to engage in commere intrastate. Some get permits to be able to engange in commerce in other states - but EACH state has the right to dictate the terms. However, the terms must always be the same, whether the particpant is in state or out of state.
There are licensing requirements for banks, lawyers, physicians, etc. but as far as I know, being licensed to practice in a state doesn't require that you reside there.
Would it be a legitimate exercise of the commerce power for the federal governemnt to prevent the state of California from saying to all those businesses that are leaving "If you move your factories or your corporate headquarters out of the state of California, you cannot sell your goods to the citizends of California. If you want to do business here, you have to move your headquarters here, and build your factories here."
If I understand you correctly - no. The federal government has no right to dictate to a state who may do business in the state.
I think in that case they would. If a state could impose a requirement that a person or company must reside in the state in order to do business there and coerce them to move their operations in order to have access to the markets, other states would follow suit and the result would be to inhibit interstate commerce in general. The objective of giving the federal government the power to regulate interstate commerce was to help foster and facilitate interstate commerce. It seems well within the objectives of the original intent of the grant of power.
Then let me ask - does a State have an obligation to ensure that it’s citizens are protected?
For an entity to be regulated by a state - it must be subject to it’s jurisdiction - i.e. must have a “domicile” in the state and/or have received a license to perform an act of commerce (which can be revoked). Without either of these, a state is powerless to enforce it’s laws. Further, questions of taxation arise by such constellations. IOW - residence requirements are likely the rule!
Examples of states having and using such “protectionist” policies can also be seen with tobacco and alcohol products (firearms as well).
IMHO the commerce clause was designed to give the federal government the power (and obligation) to *facilitae” commerce between the several states - i.e. to provide for common methods and standards as well as procedures for complaint resolution - as well as with foreign entities. AFAIK - the federal government can not compell a state to accept foreign companies within thier territory nor compell them to do business with said entities.
Since both foreign and domestic out of state entities are governed by the exact same 16 word clause - any thing that is true for ONE of the entities is true for all. IOW - if your contention is true - the federal government could FORCE a state to accept commerce from a foreign entity without any recourse for itself or it’s citizens in the case of either non-payment of taxes or delivery of defective products.
So, I humbly disagree that the Federal Government was given a power by the states and the people which renders null and void any measure of sovereignty that they enjoyed in internal matters through these 16 words alone - because that is basically what your argument comes down to.
Further, the other side of your coin also then allows the federal government to dictate what YOU as a private person may grow in your garden for your own private use (I know that the USSC has repeatedly said this is okay - I disagree for the reasons stated).
I am not talking about the federal government compelling a state to do accept a foreign company withing their territory. I'm talking about a state requiring that company to move their operation there in order to do business. If it is unfair to impose a tax on interstate goods, isn't it equally unfair to impose an embargo? It's still imposing a tax, except that instead of taxing the goods coming across the state line, it's forcing the company to be subject to whatever taxes the state imposes on it's businesses by forcing them to move there in order to do business.
Which is exactly what happens each and every day!
Give me an example of that happening.
> You can not strike the commerce clause because it is necessary for the regulation of affairs between foreign nations, between the states and with the indian tribes -
None of those things are necessary.
> if the federal government does not have the power to regulate here, internation trade agreements must be made between the individual states and foreign governments - further each state would be required to make a trade agreement with every other state ....
Second: Get rid of all that at the sate level, too. Are you for freedom or just for a more-efficient slavery?
> Sovereign Immunity also protects office holders from frivolous lawsuits which would keep them from thier duties.
Meaning inflicting a more-efficient slavery on innocent Americans? If we cut government down to nothing, there will be nothing to sue over — not that I care if would-be more-efficient-slavers are tied up in court.
> General Welfare - there arent a heck of a lot of laws authorized by this clause
Just the welfare state.
Conservatives are very poor stewards of human liberty. You’re either for freedom or you’re not. Rationalizing your own enslavement is a poor strategy — as the 1789 constitution illustrates perfectly.
Getting rid of the commerce clause cuts away at least half of the federal government. I’d call that a good start.
??? Internation trade does need need regulation? (or) each state should do this for itself?? Second: Get rid of all that at the sate level, too. Are you for freedom or just for a more-efficient slavery?
ah - I see - you are an anarchist! No rules!
The debate here is not slavery vs. freedom - instead it is how much of my freedom am I willing to give to whom to best protect my interests? "We the people", individually can not provide the same type of protection as we can collectively -> THAT and only that was the one real argument for the constitution in the first place!
Lastly, if not even that state is allowed to regulate commerce - who then sets and enforces standards? YOU? What is your recourse? "Get the guns Ma!"? Getting rid of the commerce clause cuts away at least half of the federal government. Id call that a good start.
How? Since the Federal Government refuses to be limited by the plain wording of the constitution - how can you claim that simply by striking 16 words from it, suddenly the Federal Government would shrink? They would either, find another way to justify thier doings, or simply do it. IIRC the requirment to state which "power" they are envoking to pass a law is anyway both new and a law, which, as we have seen repeatedly, they simply refuse to follow.
As to immunity - if you think it is right and good that federal officials be denied some amount of immunity from prosecution while in office - what exactly would prevent the party in power from lodging criminal complaints against the opposition for the sole purpose of keeping them OUT of government office?
No, sorry - I don't think we really want to be the Bananna Republic of America!
A Tradesman can be Bonded in one state, and have a residence and pay income taxes in another state.
An auto dealership can be owned by a company who's coporate headquarters is in another state, and sell cars manufactured in another state and shipped in.
A doctor can be licensed to practice medicine in one or more states, but maintain his residence and pay taxes to another state.
An Insurance company can be licensed to sell in one state, but have their corporate office in, and pay taxes to another state.
A construction company based out of, and paying taxes in one state can be licensed to do construction work in another state.
and in each case - the other state “allowed” the actor to engane in commerce - and in some cases (dealerships) the actual entity performing the commerce is IN state and subject to state taxes and laws. In most other cases, a prerequisite of have a license is that some sort of domicile is created so that in state actions can be taxed - even if this is nothing other than a post box! A state can not tax and/or regulate objects/actions NOT under thier jurisdiction and a state MUST have the power to compell out of state actors to comply with in state laws - otherwise, YOU the consumer and totally UNPROTECTED.
And you submit that each state has the authority to disallow it, even though doing it would have a crippling effect on the interstate commerce of the nation, and that there is nothing in the original intent of the Commerce Clause that would give the federal government the authrity to intervene?
In most cases yes.
here is a hypothectical:
California has extremely harsh environment laws and requires several thousand dollars worth of extras on cars sold in the state.
Nevada does not (hypothetically!!!).
A dealers in CA might decide - to heck with this - we can sell the cars to the ppl of CA from Nevada without the extras - add a nice amrgin anyway and both make a profit AND let the consumer save money.
CA can (and likely has) prohibit the import of cars from out of state by it’s citizens as the sole purpose of the purchase was to avoid the laws of the State. It is likely there would be some exemptions (ppl just moving to the state) - at least one year ownership before import, etc. But CA has both the right AND the responsibility to enact such laws.
Now - where exactly does Federal Government action kick in? IMHO - the FedGov must simply ensure that an “even playing field” exists - i.e. if any out of state actor meets all the requirements that an in state actor must meet and is willing to subject themselves to the jurisdiction of the state for actions performed “in the state” - then the state must generally allow the commerce. Further, any prohibitions must apply equally to all.
Lastly - the “final arbiter” is of course, the people. If a state were so insane as to prohibit the import of cheap, but otherwise good tomatoes from a nieghboring state - simply to protect some vested interest and the people themselves are forced to pay monopolistic prices - it would likely not be long before that government were ridden out on the rail.
Do you even understand what the purpose of the constitution was? - Oh, right - so the Illuminati can take over the world with thier lizard people.
If you want freedom, you must remove the means by which you are enslaved.
Workers of the world Unite!
So, tell me - who is in charge in your Utopian Society? What powers do they wield? Do they ride Unicorns?
Expressing your belligerence toward me advances your cause not at all.
Expressing your tomfoolery as something to be taken seriously advances my level of astonishment quite a bit!
Now, would you like to debate this like an adult, as has been done in this thread til now - or do you insist upon inflamatory speach?
> Do you even understand what the purpose of the constitution was?
The purpose of the 1789 constitution was to undermine the Revolutionary War. Mercantilists wanted a government powerful enough to deny cheap European-made manufactured goods to the American people — the actual original purpose of the commerce clause — so they sold out on slavery and on the expropriation of the frontier to forge a rent-seeking coalition large enough to undo the Revolution. Thus did we set America on the course to Rotarian Socialism, the mutual-corruption kleptocratic society we have today.
Inlookers: Freedom means freedom FROM GOVERNMENT. Nothing else. If you want to be free, you have to eliminate as much government as you can — much as the enemies of freedom have enlarged the role of government in every way they could.
Getting in bed with temporizers like the Republicans is how your freedom was sold out from under you in the first place. “An.American.Expatriate” is doing you a favor by showing you how they’ll do it to you again — not that the Republicans will come anywhere close to “reforming” the commerce clause.
If you don’t want 2010 to be a repeat of 1994, your political philosophy should consist of one word: Cut.
Cut the deficit.
Cut the language in the constitution that made this evil leviathan possible.
Cut the government down to size — and then keep cutting, forever.
This was the mistake of 1776, not continuing to cut down the state’s dominance of innocent Americans. Anyone who speaks of somehow “perfecting” government is a statist, and he will turn on you just as the Hamiltonians did.
And your “Model Government”? What powers do they have? At what level do they function? (community, city, etc ...).
Once established, how exactly are thier powers limited/what prevents them from expanding upon them?
I’d truely like to know!
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