Skip to comments.Commerce clause abuse
Posted on 11/04/2003 10:08:00 PM PST by JohnHuang2
Several weeks ago, under the title "Is It Permissible?" I discussed how Congress systematically abuses the Constitution's "welfare clause" to control our lives in ways that would have been an abomination to the Framers. Quite a few readers pointed to my omission of Congress' companion tool to circumvent both the letter and spirit of the Constitution, namely the "Commerce Clause."
The Constitution's Article I, Section 8, paragraph 3 gives Congress authority "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." During the war, the 13 colonies formed a union under the Articles of Confederation (1778) whereby "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The Treaty of Paris (1783) that ended the war between the colonies and Great Britain recognized 13 sovereign nations.
A key failing of the Articles of Confederation was the propensity of states to erect protectionist trade barriers. When the Framers met in Philadelphia in 1787 and wrote the constitution that governs us today, they addressed that failure through the commerce and the privileges and immunities clauses that created a national free-trade zone.
Thus, the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn't intend for the Commerce Clause to govern so much of our lives.
Indeed, as James Madison, the father of our Constitution, explained, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
For most of our history, the Courts foiled congressional attempts to use the "Commerce Clause" to sabotage the clear meaning of the Constitution, particularly the Ninth and 10th Amendments. The courts began caving in to congressional tyranny during the 1930s. That tyranny was sealed in 1942, by a little known U.S. Supreme ruling in Wickard vs. Filburn.
Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat -- therefore, he was indirectly affecting interstate commerce.
If there's any good news, it's the tiny step the U.S. Supreme Court took in its in U.S. Vs. Lopez (1995) ruling. In 1990, Congress passed the Gun-Free School Zones Act, citing its powers under the "Commerce Clause." Namely, the possession of a firearm in a local school zone substantially affected interstate commerce.
Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.
While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn't, saying, "If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."
In other words, the hours children spend studying, the amount of rest they get and what they eat have something to do with learning. Congress could easily manufacture a case for the regulation of these activities based on its perverted interpretation of the "Commerce Clause."
While the Lopez ruling is a tiny step in the right direction, there's much more to be done. Constitution-respecting Americans should demand the impeachment of congressmen and other elected officials who ignore their oaths of office to uphold and defend the Constitution.
"Do not meddle in
The mother of all commerce clause abuses was passed in 1937: the Marihuana Tax Stamp Act.
Regulate and facilitate do not have equivalent meanings. IMHO regulation of telemarketers is a heck of a lot closer to the original intent of this section than the vast majority of the crap spewing out of congress pposing as valid laws.
Is JimRob included in "they"?
I don't seem to recall the last time I saw him on one of the legalize dope threads using any of the prevailing arguments.
I'm sure there was a huge* Libertarian rally against the Gun Free Schools Act and the Violence Against Women Act.
*huge Libertarian rally = a group of 5 people
Kinda of like when they hide behind the suffering of others when they tout medical marijuana.
"I do not support the federal war on drugs. I don't think it passes constitutional muster. Crime fighting, including drug crimes (other than international smuggling, etc) should be left to the states and local jurisdictions. I also do not support no knock raids, asset forfeiture, unauthorized wire taps or snooping into bank accounts, etc. All unconstitutional." - Jim Robinson, 10/03/2003
I think it is a safe bet that all of the FR loserdopians are against these acts.
And that is why there are dozens of threads posted on FR each day about those issues by Libertarians and such rhetoric as that there are millions of college students in prison pounding rocks for violating the "gun free school act".
Dude, JMO, stop digging yourself a deeper hole.
Either stop deliberately playing dumb or learn how to read.
Get back to me when pro-drug Libertarian #1 on FR, Leroy, starts spamming the news forum with threads about the gun free school act, instead of articles from obscure sources about the drug war.
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