Skip to comments.A "Commerce Clause Amendment"
Posted on 07/20/2011 8:58:13 AM PDT by frithguild
The interests of each constituent group in the Democrat Party coalition shows how distorted our federal government has become, all due to the errors of the Supreme Court.
Swift v. United States, 196 U.S. 375 (1905) found that federal regulation of meat packing to prevent price fixing permissable because the regulated activity had an "affect" on commerce. And the trust busting Teddy Roosevelt smiled. A generation later, the New Deal took root in the the redefinition that consideration of an "impact" or "effect" on commerce permits.
Justice Thomas filed a brilliant concurring opinion in U.S. v. Lopez 514 U.S. 549 (1995) discusing basically that engrafting a substantial effect or impact upon commerce "test" has given rise to an all encompassing federal police power (Not a very good one line summary - a project for another day - I highly recommend reading the whole thing). The interesting point is that, in argument, the government could not describe a limit to the power the effect or impact test implies. The Thomas concurrence states a belief that the effect or impact on commerce test should be limited, but that the Court lacks the power to sweep away 50 years worth of precident. So the emperor may have no clothes, but the tailor who made him that way has no cloth.
The Court's consideration of Obamacare will result in the revisiting of this issue. Amicus brefis have asked the Court to examine the limit of Commerce Power, with the substantial impact or effect test. I do not trust this Court to do the right thing.
Right now, the House has steered the debate to implementing a balanced budget amendment. That is fine, but it does not address the root issue. Comerce power, as the framers understood it, deprived the federal government from involving itself in 90% of what it does today. We need amend the Constitution to add 13 words, a "Commerce Power Amendment":
"U.S. Const. Art. I § 8, cl. 3 is amended to state: 'To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes (1) WITHOUT (2) CONSIDERATION (3) OF (4) AN (5) IMPACT (6) OR (7) EFFECT (8) ON (9) COMMERCE (10) WITHIN (11) AN (12) INDIVIDUAL (13) STATE."
Something like this will reach the public consciousness, only if things "go pear shaped." So that is my rant for the day.
Wishful thinking but I like it.
I would repeal and replace with. The Federal Government has no business regulating commerce and shall not.
Maybe wishful thinking, but Constitutional restoration is the only way forward. The bastardization of the Commerce Clause was the lynchpin for all that the progressives wrought over the last 100 years.
Replace the 2nd Amendment. Citizens have the absolute right to bear any weapon. Including Atomic Weapons. They also have the duty to learn how to shoot straight.
It is called a Constitutional Convention and is at this point our only hope and remedy. Elections of RATS and RINOS are a waste of time.
Citizens have the absolute right to bear any weapon.
Depressed people tend to want others to suffer like theyre suffering. If I cant have her, nobody can. With that statement, murder suicide. Im certain Jim Jones and the thousands of lesser narcissists would gleefully punch the button on their personal nuke; satisfied in the certain knowledge theyll be on CNN for the next 48 hours.
I dont think a personal nuke is practical. But I remember a time when a personal computer was unheard of. If you look back in history youll find a time relatively recent when having a pocket watch meant you were among the elite. With the publication of the human genome, I think its possible eventually youll be able to buy the RONCO gene splicing kit with Ebola starter pack. Hopefully, by that time, our culture will have matured more and we wont have so much gratuitous violence. But, I wont bet on it.
Wishful thinking, I know. The debate on qualification for federal office should focus only on foreign policy, administration of the military, tax and tariff policy and other Art 1 section 8 powers.
Other nations complaint thta our foreign policy lacks coherence. No kidding! Our federal elections have become won or lost based upon internal affairs, because of distorted commerce power, “penumbra” powers and other general “police” concerns. Our governments have become worse and worse over the past 100 years at doing what they were intended to do.
It'll probably never happen, but such an amendment would make Wickard v. Filburn a dead letter, which would go a long way towards restoring liberty in this country.
To regulate commerce and the channels, instrumentalities, persons and things directly involved in commerce, and any activity that directly and substantially impedes or obstructs the movement, trade, intercourse, exchange and trafficking of goods, articles, products and services in commerce, with foreign nations, among the several States, and with the Indian Tribes; otherwise, leaving to the sovereign States the regulation of economic, productive and other non-commerce activity within a State as guaranteed by the Tenth Amendment of this Constitution.
I think the 13 words is better, because it requires the court to look back to original intent, without spoon feeding it to them, while washing away Swift Foods and its progeny. His use of "substantially" may give rise to more hair brained "tests." No tests, please. Commerce is not agriculture or industry or anything that impacts or effects them.
Soon we can get the Ronco/Obama home Apendectomy Kit. Think of the tax money it will save.:)
No two ways about it; the misapplication of the commerce clause un-did the Republic. Question now is: with the death of the Republic, why are the States still in the “Union”? Put another way, if the Republic “framed” by the founders has ceased to exist........has the Union actually ceased to exist as well?
"among the several States" was supposed to be among the states not among the people
2nd Amendment "shall not be infringed"
they do not care about the writen word only what they want.
Instead how about this for an amendment?
(Change to article 3 section 3)
Treason against the United States, shall consist only in levying War against them, adhering to their Enemies, giving them Aid and Comfort, or Government officials trying to subvert the plain meaning and intent of this constitution. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
A Pratchett fan, perhaps?
U.S. v Lopez
Justice Thomas, concurring.
I don’t know.
“I would repeal and replace with. The Federal Government has no business regulating commerce and shall not.”
This is the answer!
There is simply no longer a need for the central government to regulate commerce between states. The free market will take care of this issue. Early in our history the regulation of interstate commerce may have been needed but not now. There is virtually NOTHING that the federal government does with this power that actually benefits the people. It is and has been for many years a vehicle for the abuse of power.
Terry Pratchett is fond of writing “going all pear-shaped” in his various books . . .
Or how about this language?p
I’m familiar with that case but that does not mean there is any chance of getting a commerce clause amendment passed.
You need to look at the history of the Holy Roman Empire, the Peace of Westhpalia and the Zollverein.
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