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Commerce clause abuse
TownHall.com ^ | Wednesday, November 5, 2003 | Walter E. Williams

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.



TOPICS: Constitution/Conservatism; Editorial; News/Current Events
KEYWORDS: commerceclause; walterwilliams; wodlist
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Wednesday, November 5, 2003

Quote of the Day by semaj

1 posted on 11/04/2003 10:08:01 PM PST by JohnHuang2
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To: JohnHuang2

"Do not meddle in
the affairs of Wizards,
for they are subtle,
and quick to anger!"


2 posted on 11/04/2003 10:46:51 PM PST by sourcery ("Don't make me get my Ring!")
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To: JohnHuang2; jmc813; *Wod_list
The courts began caving in to congressional tyranny during the 1930s

The mother of all commerce clause abuses was passed in 1937: the Marihuana Tax Stamp Act.

3 posted on 11/05/2003 7:06:20 AM PST by bassmaner (Let's give the word "Nazi" back to the commies!!)
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To: JohnHuang2
Let's see how many hypocrites here say that violating the commerce clause to create a do-not-call list is just fine. The commerce clause is meant to facilitate commerce, the do-not-call lists inhibits commerce, therefore it is unconstitutional.
4 posted on 11/05/2003 7:12:41 AM PST by palmer (They've reinserted my posting tube)
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To: Wolfie; vin-one; WindMinstrel; philman_36; Beach_Babe; jenny65; AUgrad; Xenalyte; Bill D. Berger; ..
WOD Ping
5 posted on 11/05/2003 7:53:15 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: CWOJackson; Dane; Cultural Jihad; cinFLA
This article sums up why so many liberdopians are against the Federal WOD.
6 posted on 11/05/2003 7:54:14 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: jmc813
I know that this is an excuse they use a lot.
7 posted on 11/05/2003 8:03:13 AM PST by CWOJackson
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To: palmer
..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."

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.

8 posted on 11/05/2003 8:06:15 AM PST by Jack of all Trades
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To: CWOJackson
I know that this is an excuse they use a lot.

Is JimRob included in "they"?

9 posted on 11/05/2003 8:11:43 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: JohnHuang2
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.


Here's how I think of it: The Commerce Clause was written to PREVENT governmental impediments to free commerce (e.g. state tarrifs).

Now it is being used as the prime enablement of governmental impediments to commerce, precisely contrary to the original intent of protecting freedom of commerce.
10 posted on 11/05/2003 8:16:13 AM PST by Atlas Sneezed
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To: jmc813
JR?

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.

11 posted on 11/05/2003 8:25:35 AM PST by CWOJackson
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To: jmc813
"This article sums up why so many liberdopians are against the Federal WOD."

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

12 posted on 11/05/2003 8:26:00 AM PST by robertpaulsen
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To: CWOJackson
I know that this is an excuse they use a lot.

Kinda of like when they hide behind the suffering of others when they tout medical marijuana.

13 posted on 11/05/2003 8:28:24 AM PST by Dane
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To: palmer
The commerce clause is meant to facilitate commerce, the do-not-call lists inhibits commerce, therefore it is unconstitutional."
Then a "No Solicitors" sign on a door inhibits commerce.
To me the do-not-call list is a "No Solicitors" sign for telephones.
By your estimation I should be fined, if everyone follows the logic Wickard vs. Filburn, for having a sign on my door telling salesmen not to bug me!
14 posted on 11/05/2003 8:30:23 AM PST by philman_36
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To: CWOJackson
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.

Last month...

"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

15 posted on 11/05/2003 8:34:12 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: robertpaulsen
I'm sure there was a huge* Libertarian rally against the Gun Free Schools Act and the Violence Against Women Act.

I think it is a safe bet that all of the FR loserdopians are against these acts.

16 posted on 11/05/2003 8:35:52 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: jmc813
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.

17 posted on 11/05/2003 8:45:30 AM PST by Dane
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To: Dane
Are you claiming that us pro-druggies support those bills?
18 posted on 11/05/2003 8:47:01 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: jmc813; MrLeRoy
Are you claiming that us pro-druggies support those bills?

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.

19 posted on 11/05/2003 8:52:44 AM PST by Dane
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To: jmc813; Dane; CWOJackson; robertpaulsen
You're such a glutton for punishment jmc813. You got a "Kick Me" sign on yourself today?
20 posted on 11/05/2003 8:53:00 AM PST by philman_36
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To: Dane; jmc813
Are you claiming that us pro-druggies support those bills?
Get back to me...

In other words...you can't answer such a simple question! Amazing!
21 posted on 11/05/2003 8:55:42 AM PST by philman_36
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To: philman_36
"Then a "No Solicitors" sign on a door inhibits commerce."

Not only that -- If you don't purchase what they're selling you can be arrested for interfering with commerce. By not purchasing, you're blocking "trade". You anti-capitalist, you.

Forget the DEA, we need the CEA (Commerce Enforcement Agency).

Their motto? "Buy or Die"

22 posted on 11/05/2003 8:56:12 AM PST by robertpaulsen
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To: palmer
" The commerce clause is meant to facilitate commerce,"

The intent of the clause was not to facilitate commerce, but the protect the rights of those involved in interstate commerce. IOWs to regulate so as to maintain justice and fairness in the marketplace.

23 posted on 11/05/2003 8:56:44 AM PST by spunkets
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To: Dane
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.

LeRoy is but one hedonist pro-druggie among many. I personally would be happy to debate you on your support of the Assault Weapons Ban if you'd like.

24 posted on 11/05/2003 8:56:58 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: philman_36
You're such a glutton for punishment jmc813. You got a "Kick Me" sign on yourself today?

Nah. I consider it educating people on Constitutional issues.

25 posted on 11/05/2003 8:57:56 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: philman_36; jmc813
In other words...you can't answer such a simple question! Amazing!

Huh? Dude my reply #17 was tongue in cheek sarcasm, that Libertarians care about one thing and one thing only, drug legalization.

Get back to me when you can understand the concept of sarcasm.

26 posted on 11/05/2003 9:00:13 AM PST by Dane
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To: Dane
that Libertarians care about one thing and one thing only, drug legalization.

But so few of us pro-druggies on FR are Libertarians. Why do you attempt to suggest otherwise?

27 posted on 11/05/2003 9:01:46 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane
"are millions of college students in prison pounding rocks" --?
-dane-

______________________________________

Yesterday a thread claimed there were close to 700,000 pot busts a year in the USA.

Was it false?
28 posted on 11/05/2003 9:02:14 AM PST by tpaine (I'm trying to be 'Mr Nice Guy', but Arnie won, & our republic, as usual, will lose.)
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To: jmc813
My, was that on one of the legalize dope threads? I know JR has an opinion regarding the WOD I just recall seeing him on the legalize dope threads using these arguments.
29 posted on 11/05/2003 9:02:33 AM PST by CWOJackson
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To: CWOJackson
My, was that on one of the legalize dope threads?

It was on a Limbaugh thread that degemnerated into a WOD thread.

30 posted on 11/05/2003 9:04:58 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: JohnHuang2
"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."

Maybe the states should have opted for the "few and defined" rather than the "numerous and indefinite." ;-)

31 posted on 11/05/2003 9:06:34 AM PST by Scenic Sounds (Me caigo a mis rodillas y hablo a las estrellas de plata. "¿Qué misterios usted está encubriendo?")
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To: Dane
Dude my reply #17 was tongue in cheek sarcasm, that Libertarians care about one thing and one thing only, drug legalization.
So all of your "portrayals" of Libertarians is all just BS. Gotcha!
Get back to me when you can understand the concept of sarcasm.
Dude, you'd have to use sarcasm first.
32 posted on 11/05/2003 9:09:16 AM PST by philman_36
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To: robertpaulsen; philman_36; jmc813
WASHINGTON, DC -- A new bill filed in Congress that would make it illegal for telemarketers to call you during dinnertime should be rejected because it is unnecessary, unfairly restricts free enterprise and, worst of all, treats Americans like children, the Libertarian Party said today.

"Message to Congress: Don't do us any favors," said Steve Dasbach, the party's national director.

"Yes, a law that permanently disconnects dinnertime telemarketers may make some Americans cheer. But Libertarians realize that not every minor irritant requires a new federal law -- and realize that legislation-happy politicians are more of an annoyance than pesky telemarketers will ever be."

The bill, HR 232, was filed by Rep. Peter King (R-NY). It would ban all telemarketing between 5:00 and 7:00 pm, and would require telemarketers to inform people at the beginning of any call that they can be placed on a "Do Not Call" list.

While the bill may strike a responsive chord among Americans who hate the sound of a ringing telephone during dinner, said Dasbach, HR 232 should be rejected because:

* It isn't necessary.

"Advances in technology have given Americans new weapons to fight irritating telemarketers," said Dasbach. "Answering machines allow you to screen your calls. Caller ID allows you to see who is calling. Call blocking allows you to permanently reject certain kinds of calls.

"And if those techniques fail, a polite 'no thank you' and a quick hang-up are all that's needed to send unwanted telemarketers packing. You don't need a new federal law -- or a new category of federal crime -- to beat telemarketers."

* It unfairly restricts free enterprise.

Bill banning dinnertime telemarketing may be popular, but it's not needed

Oh BTW, I know with the above post, I have "technically" contradicted myself, with my previous remarks that Libertarians only care about drug legalization, but life is not based on technicalties, kinda of like the life that Barbara Boxer leads when she votes against a partial birth abortion ban, because to her all abortion has to be kept legal. Not that much different than the Libertarian view on drugs, IMO.

33 posted on 11/05/2003 9:11:15 AM PST by Dane
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To: robertpaulsen; Dane
You got a point in that diatribe somewhere?
Is this just an attempt to call me an anti-capitalist or is the common sense in it all just too much for you to comprehend?

Look Dane, I used "diatribe"! Too subtle for ya?

34 posted on 11/05/2003 9:14:36 AM PST by philman_36
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To: Dane
...IMO.
YOS!
35 posted on 11/05/2003 9:15:24 AM PST by philman_36
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To: Dane
Oh BTW, I know with the above post, I have "technically" contradicted myself, with my previous remarks that Libertarians only care about drug legalization, but life is not based on technicalties

Kinda like how you call pro-drug FReepers "Libertarians" even though "technically" they are not.

36 posted on 11/05/2003 9:15:35 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane
Oh BTW, I know with the above post, I have "technically" contradicted myself, with my previous remarks that Libertarians only care about drug legalization, but life is not based on technicalties, kinda of like the life that Barbara Boxer leads when she votes against a partial birth abortion ban, because to her all abortion has to be kept legal. Not that much different than the Libertarian view on drugs, IMO.

The above should read(to clear up any misunderstandings that Libertarians may have).

Oh BTW, I know with the above post, I have "technically" contradicted myself, with my previous remarks that Libertarians only care about drug legalization, but life is not based on technicalties, not like the life that Barbara Boxer leads when she votes against a partial birth abortion ban, because to her all abortion has to be kept legal. Not that much different than the Libertarian view on drugs, IMO.

37 posted on 11/05/2003 9:15:48 AM PST by Dane
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To: philman_36
YOS!

That was mean, but I am admittedly laughing out loud.

38 posted on 11/05/2003 9:16:27 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane
(to clear up any misunderstandings that Libertarians may have).

What Libertarians have shown up on this thread thusfar?

39 posted on 11/05/2003 9:17:27 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: philman_36
So all of your "portrayals" of Libertarians is all just BS. Gotcha!

Huh, can you show me where the phrase BS and sarcasm are linked in a Thesaurus.

40 posted on 11/05/2003 9:18:43 AM PST by Dane
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To: jmc813; philman_36
That was mean, but I am admittedly laughing out loud

Shouldn't your last three words be the acronym, LOL!

BTW, what does the acronym "YOS" mean. Sorry but trying to be hip, doesn't guide my life.

41 posted on 11/05/2003 9:21:45 AM PST by Dane
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To: philman_36
A private individual is allowed to post such a sign. Now, if the fed government required you to post that sign it would be unconstitutional. You do understand the difference between a private person and the government, don't you? In fact, a local government could pass legislation restricting solicitation in their locality, the fed gov't. can't!
42 posted on 11/05/2003 9:21:59 AM PST by CSM (Shame on me for attacking an unarmed person, a smoke gnatzie!)
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To: jmc813
That was mean, but I am admittedly laughing out loud.
And here I thought I was outspoken only to find out that I'm mean. {;^)

Mean Mister Mustard sleeps in the park
Shaves in the dark trying to save paper
Sleeps in a hole in the road...

43 posted on 11/05/2003 9:22:13 AM PST by philman_36
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To: philman_36
Mean Mister Mustard sleeps in the park
Shaves in the dark trying to save paper
Sleeps in a hole in the road...

Are you trying to be Polythene Pam, Phil?

44 posted on 11/05/2003 9:24:08 AM PST by Dane
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To: Dane
Shouldn't your last three words be the acronym, LOL!

In this situation, it would be valid but you know my aversion to overuse of LOL.

45 posted on 11/05/2003 9:24:37 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: CSM
You do understand the difference between a private person and the government, don't you?
Me stump and log lump. Help me! (DUH)

A private individual is allowed to post such a sign.
To me the "No call list" is such a "private" sign. Since "communications" today does fall within the realm of the feds then there should be a means in which I, as a private person, can dictate to the feds on how to control their wild, unruly beast. Get that dog chained up!

46 posted on 11/05/2003 9:27:09 AM PST by philman_36
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To: Dane
Are you trying to be Polythene Pam, Phil?
Nah, but you're already The Fool on the Hill.
47 posted on 11/05/2003 9:27:58 AM PST by philman_36
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To: philman_36
Nah, but you're already The Fool on the Hill

Huh, "The Fool on the Hill" wins out in the end at the end of that song.

BTW, are you going to answer the question of what the acronym "YOS" means.

I'm still waiting for an answer.

48 posted on 11/05/2003 9:31:20 AM PST by Dane
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To: JohnHuang2
This ain't gonna sit very well with a large portion of regular FR contributors.
49 posted on 11/05/2003 9:33:27 AM PST by Hemingway's Ghost
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To: jmc813
jmc813 wrote:
What Libertarians have shown up on this thread thusfar?




Glad to see you finally admitting that you are not a libertarian, my boy.

But what am I, if not libertarian? Chopped liver?
50 posted on 11/05/2003 9:35:25 AM PST by tpaine (I'm trying to be 'Mr Nice Guy', but Arnie won, & our republic, as usual, will lose.)
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