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.)
That power was already limited by the Tenth Amendment.
The fact that congress has seen fit to ignore the plain language of the ICC and the Tenth is no reason to give them another amendment to ignore.
Unless we take back our federal courts, we have no chance of guaranteeing that our Constitution is respected, whether we amend it or not.
Aside from the 10th amendment, the Financial reform bill in the Senate now, includes the Consumer Financial Protection bill...the entire economic, financial monitoring, control, data collection, and intended manipulation of consumer behavior of ALL citizens has been turned over COMPLETELY to the Fed Reserve via the new Bureau to be established within the Fed Reserve. Think that will not have an impact on commerce? Congress has just put the financial lives of ALL Americans in a black bag and handed it over for the Fed REserve to play with in a globalized fashion. Think about it.
You want to create an amendment to take away a power that was never given to the government in the first place? I really don’t think that is going to work. There are much more worthy causes for amendments.
The power to regulate interstate commerce shall be limited to, and with objective of, establishing and maintaining the channels and carriers of interstate commerce, and the elimination and prevention of barriers or impediments to interstate commerce by the States.
the limit is in the clause itself ... “amoung the states” iow between states not within states and, most importantly not between businesses and people in and/or between the states. All of the actors specifically mentioned are soveriegn entities - and it is fitting and proper that a national governemnt was established to regulate trade between such entities. Any other attempts to bring meaning to the clause are therefore facetious.
IOW - the clause was rather quickly ignored even though its meaning and intent is clear. Re-writing it will not make it any harder to ignore. Especially when even so-called conservative Justices can declare, with a straight face(!), that just about any item produced anywhere is just “one step removed” from interstate commerce and can thus be regulated by the imperial federal government.
So, good luck on finding an iron tight wording that some scummy lawyer type can’t ooze through ....
Why should the congress be given the power to dictate whether a specific state can prohibit the entry of goods into the state for the purpose of selling said goods in that state (i.e. not just passing through)?
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, but not within, the several states, and with the Indian tribes;"
That is within the original intent of the commerce power - to prevent one state from setting up trade barriers that essentially sought to give favored industries within their own state an unfair advantage in local market. One state would try to keep a particular product or commodity produced in another state out to protect their own producers, and then the other state would retaliate with their own restrctions on goods from the first state and it would turn into full-blown trade wars. It was recognized early on that this was destructive to industry and commerce and needed to be stopped. The only entity that would have the authority to do that would be the national government, and it was intended that they would have that power when the grant of power was made. The historical record is well established on this point.
At the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A Dictionary*586 of the English Language 361 (4th ed. 1773) (defining commerce as “Intercour[s]e; exchange of one thing for another; interchange of any thing; trade; traffick”); N. Bailey, An Universal Etymological English Dictionary (26th ed. 1789) (“trade or traffic”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 Oxford English Dictionary 552 (2d ed. 1989) (com-“with”; merci-“merchandise”). In fact, when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably. See The Federalist No. 4, p. 22 (J. Jay) (asserting that countries will cultivate our friendship when our “trade” is prudently regulated by Federal Government); FN1 id., No. 7, at 39-40 (A. Hamilton) (discussing “competitions of commerce” between States resulting from state “regulations of trade”); id., No. 40, at 262 (J. Madison) (asserting that it was an “acknowledged object of the Convention ... that the regulation of trade should be submitted to the general government”); Lee, Letters of a Federal Farmer No. 5, in Pamphlets on the Constitution of the United States 319 (P. Ford ed. 1888); Smith, An Address to the People of the State of New York, in id., at 107.
FN1. All references to The Federalist are to the Jacob E. Cooke 1961 edition.
As one would expect, the term “commerce” was used in contradistinction to productive activities such as manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors. See, e.g., The Federalist No. 36, at 224 (referring to “agriculture, commerce, manufactures”); id., No. 21, at 133 (distinguishing commerce, arts, and industry); id., No. 12, at 74 (asserting that commerce and agriculture have shared interests). The same distinctions *587 were made in the state ratification conventions. See, e.g., 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 57 (J. Elliot ed. 1836) (hereinafter Debates) (T. Dawes at Massachusetts convention); id., at 336 (M. Smith at New York convention).
Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles.
The Port Preference Clause also suggests that the term “commerce” denoted sale and/or transport rather than business generally. According to that Clause, “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” U.S. Const., Art. I, § 9, cl. 6. Although it is possible to **1644 conceive of regulations of manufacturing or farming that prefer one port over another, the more natural reading is that the Clause prohibits Congress from using its commerce power to channel commerce through certain favored ports.
The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause FN2 does not state that Congress may *588 “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. Art. V. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” Clause had that been their objective.
FN2. Even to speak of “the Commerce Clause” perhaps obscures the actual scope of that Clause. As an original matter, Congress did not have authority to regulate all commerce; Congress could only “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3. Although the precise line between interstate/foreign commerce and purely intrastate commerce was hard to draw, the Court attempted to adhere to such a line for the first 150 years of our Nation. See infra, at 1646-1649.
In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States. U.S. Const., Art. I, § 8, cl. 18. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, § 8, are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify*589 that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.
Put simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, § 8.FN3
FN3. There are other powers granted to Congress outside of Art. I, § 8, that may become wholly superfluous as well due to our distortion of the Commerce Clause. For instance, Congress has plenary power over the District of Columbia and the territories. See U.S. Const., Art. I, § 8, cl. 17, and Art. IV, § 3, cl. 2. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.
Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the Clauses of § 8 all mutually overlap, something we can assume the Founding Fathers never intended.
**1645 Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.
U.S. v. Lopez 514 U.S. 549, 585-589, 115 S.Ct. 1624, 1643 - 1645 (U.S.Tex.,1995)
wrong! The states we free to regulate what was sold within the state - what they were prohibited from doing was to lay a tax or levy on the imports from other states (thus making in state goods cheaper) and/or to deny free passage of goods through the state - this was especially important since otherwise the coastal states could effectivley strangle land bound ones ...
sorry - wall of legalize that I can not get through.
Can you give me the “Case Decision for Dummies” version?
This is a particularly brilliant dissenting opinion penned by Justice Thomas. I should work on a plain English version of it.
okay - its late and my eyes are tired - so forgive my not delving in ...
The Supreme Court created a test to determine when the Commerce clause applies - Congress can act when the subject of the legislation involves “a substantial affect on commerce.” Once the Court applied this test in Wickert and the Slaughterhouse cases, the only thing the Court has refused to allow is a fderal police power. Thomas argues that if this is the case, why should we have all of these other ennumerated powers, when you have an all encompassing power to regulate anything that has a substantial affect on commerce? Commerce power as the Court has fashioned it has swallowed the concept of enumerated powers.
The citation to the case is at the bottom of the post. If you google the citation, you can get to the text of the opinion somewhere. State v. Lopez gives a great summary of the history of commerce power.
Only Thomas understands commerce power on the Court as it is constituted.
The prohibition on taxes and levys would also imply a prhibition on an outright ban. It makes no sense to say that they couldn't levy a tax on say, corn from Iowa but they could simply say that no corn from Iowa could be brought into the state. That's not the same as imposing a general ban on the sale of something within the state that applied equally to both local and interstate sources.
From this weblog post: http://splendorquest.com/?p=41
But here, in a very short summary, is what needs to be done, if the head of steam built up by the tea party movement is not to be wasted. The text within the quotation marks is proposed amendatory language, followed by a discussion of the objective to be achieved.
1. “The words ‘general welfare’ appearing in the United States Constitution or its Amendments do not create any powers of the legislative, executive or judicial branches of the government of the United States. Any legislation authorized by the words ‘general welfare’ is repealed.” This gets rid of one of the most pernicious pieces of federal elasticity. The pretext for forcing people to buy health insurance under Obamacare — now dead, one may hope — was to have been the general welfare clause.
2. “Article 1, Section 8, Clause 3 of the United States Constitution is stricken in its entirety. Any legislation authorized by that clause is repealed.” This does away with the power of the federal government to regulate commerce. The interstate commerce clause is second only to the general welfare clause as a means of enlarging the power of the national government.
3. “Amendement 16 to the United States Constitution is stricken in its entirety. Any legislation authorized by that Amendment is repealed.” Goodbye federal income tax. The federal government will have to return to taxation by capitation — the head tax.
4. “Amendement 17 to the United States Constitution is stricken in its entirety. Any legislation authorized by that Amendment is repealed.” This language puts the Senate back under the control of the states. This was a vital check on federal power. Its absence is what has permitted the most abusive usurpations of power by the federal leviathan.
5. “No governmental entity in the United States nor any office-holder or employee of any governmental entity in the United States is immune from criminal prosecution or civil litigation.” This eliminates the legal doctrine called sovereign immunity. The argument is that the people ought not be able to sue themselves. But when government officials commit crimes against citizens, they should be held fully accountable to the law. Americans fought and died so that no sovereign could tread on the rights of the people.
Taken as a whole, this language will eliminate much of the federal government. The power to defend the nation will be retained, but most of the alphabet soup agencies will be gone, as will be most of the taxes and regulations strangling our economy. The states will have to fill some gaps, but I think we will all be quietly amazed at how little value the national government brings to civic life — and how relieved we all will be to be out from under its enormous weight.
Actually it does make sense and is done even today.
Banks, physicians, laywers and many other trades must be state approved to operate within the state and, even if I have the approval of a different state, that (alone) does not allow me to engange in trade in the other state!
The states have always had the soveriegn right to dictate commerce laws within the state - but if they DO allow other businesses from other states to engage in commerce in the state; all actors must be treated as equals - that is what the regulation of interstate commerce is all about. Indeed, without the clause, there would be anarchy in interstate trade.
This is further evidenced by the jurisdiction clauses for the Supreme Court “... to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States ...” as most “Controversies” are of contractual or trade nature and, if the federal government did NOT have the power to regulate, the court could have no jurisdiction!
The important thing to remember is that the states are sovereigns and the “United States” was a compact of the several states to protect and foster thier mutual interests.
Can a state disallow interstate commerce, but allow intrastate commerce even though the out of state businesses meet all the same requirements as the local businesses, except for being out of state? IOW, could a state simply deny it's markets to businesses in other states in order to create a captive market for it's own industries?
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