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.
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.
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.
Do you agree with Justice Thomas' comments on substantial effects and the Commerce Clause?
Leave it to those forever adorned with jackboots to infiltrate that which was designed to keep them expressly from the party. Rude barely begins to describe them.
You tell me what's more dangerous, Ken H, elected officials passing bad laws or unelected, appointed for life, activist judges.
We have more to fear from Justice Thomas and his 8 buddies on the USSC than we do from Congress. IMO.
Article I.8 includes the "necessary and proper" clause, which Clarence Thomas neglects to mention. Not that the "commerce clause" isn't stretched well beyond the point of absurdity, but there is at least some justification.