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.
The vast majority of the Civil Rights Laws prohibiting discrimination in housing, restaurants, and places of public accommodation and other businesses open to the public is based upon the Commerce Clause. If not the Commerce Clause, then what would be the constitutional basis for the civil rights laws as applied to individuals?
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.
I hear what you're saying, but the language of the Constitution doesn't manifest that narrow a purposee:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
"Regulate" seems more broad than "facilitate."
Is it okay for a court to depart from the language used if the court believes that the "original intent" warrants the departure? Who should they consider when trying to determine the "original intent" of a provision? The guy who drafted it? The members of the Constitutiional Convention, or just the ones who voted in favor of the Constitution? Should we also consider the views of the members of the State ratifying conventions, and, if so, which ones? How can a court pick and choose among varying "original intents"?
These are some of the problems that a court faces when we ask them to actively intervene to limit the power of our elected Congress. ;-)
And the line that you omitted is at the very end of the song. Whew dude, you think that you are a demo or something, that a liberal media on FR is going to protect from your obvious omission.
Uh maybe, the ones who knee jerkingly throw out calling someone a fool, are the fools themselves.
I know that is a hard concept for you to grasp, but I wasn't the one who started out with the ad hominems.
My posts started out with my opinions about the political positions of Libertarians.
Oh that's right my opinions automatically sucked to you, nevermind. You and Hillary come from the same mindset, IMO. Elitism run amuck.
And he never gives an answer .....
Uh, I didn't knee jerkingly call you Polythene Pam in my reply #44. I asked a question since you quoted the lyrics from "Mean Mister Mustard" in your reply #43.
And any Beatle afficinado knows that Mean Mister Mustard and Polythene Pam were siblings.
Top of the morning to you also CWO, a fellow "JBT", on the west coast.
Yes it is an always excellent day when a "persecuted and so humble Libertarian" is found caught using omissions and acting like his/her cousin, a liberal democrat.
Sheesh Jeff, like I said to you before on this thread, stop trying to dig yourself a deeper hole. Phil was caught omitting something pertinent to the conversation, basically using the same the behavior as the liberal democrats, IMO.
I woke up one morning and it just struck me, I had to join the crusade to end the unConstitutional WOD! It's curious. I don't use dope and wouldn't use dope even if it were legal. I don't encourage people to use dope and never would even if it were legal. But I have this overwhelming need to fight a crusade to make dope legal.
Another victim of Spontaneous Constitutional Crusade Syndrome...yet another victim of SCC.
Down with the man!
But you're calling him a Libertarian when he is not a member of the LP. Do you consider me a Libertarian even though I am a card-carrying member of my county GOP?
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