Publius-Huldah's Blog

Understanding the Constitution

DOES THE “INTERSTATE COMMERCE” CLAUSE AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?

By Publius Huldah

Bill O’Reilly of Fox News recently asked attorneys Megyn Kelly and Lis Wiehl whether Congress has authority under the Constitution to require us to buy health insurance. Wiehl said Congress has the power under the “interstate commerce” clause; but Kelly said it would take “days and weeks of research” to answer the question.

Let us see if we can walk through this question to the answer in five minutes. Article I, §8, clause 3, U.S. Constitution, says,

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

What does “regulate Commerce among the several States” mean?

First: What is “commerce”? Because words change meaning throughout time [“gay” once meant “jovial & lighthearted”], we must consult an old dictionary. Webster’s American Dictionary (1828) defines commerce as:

“…an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.”

So!  “Commerce” is the buying and selling of goods.

Now, we must find out what “regulate Commerce among the several States” means. Two readily available authorities tell us:  The Federalist Papers, written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the Constitution to the People and induce them to ratify it; and The Records of the Federal Convention of 1787 kept by James Madison.

These authorities prove that the purposes of the “interstate commerce” clause are (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.

In Federalist No. 22 (4th  para), Hamilton says:

“The interfering…regulations of some States…have… given just cause of…complaint to others, and…if not restrained by a national control, would be multiplied… till they became… serious sources of animosity and… impediments to the intercourse between the different parts of the Confederacy. ‘The commerce of the German empire…is in continual trammels from the multiplicity of…duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the…navigable rivers [of]…Germany…are rendered almost useless.’  Though the…people of this country might never permit this…to be… applicable to us, yet we may…expect, from the…conflicts of State regulations, that the citizens of each would…come to be…treated by the others in no better light…”

In Federalist No. 42 (9th para), Madison says:

“…A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State…ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…”

See also Federalist No. 44 (8th para) and Federalist No. 56 (6th para), to the same effect.

Madison’s Records of the Federal Convention of 1787 show:

Thursday, August 16, 1787:

“…Mr. Madison. 1. the power of taxing exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively…3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled [New Hampshire, Connecticut, New Jersey, Delaware, and N. Carolina] with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports…”

See also Tuesday, August 21, 1787 for Mr. Ellsworth’s comment that the power of regulating trade between the States will protect them against each other, and Tuesday, August 28, 1787 for Gouverneur Morris’ comment that the power to regulate trade between the States was necessary to prevent the Atlantic States from taxing the Western States.

So! The evidence is ample, clear and unambiguous!  Furthermore, five clauses in the Constitution: Art. I, §8, cl.1; Art. I, § 9, cl.5; Art. I, § 9, cl.6; Art. I, §10, cl.2; & Art. I, §10, cl.3, give express effect to these two purposes of the “interstate commerce” clause.

The clause is not a blank check for Congress to fill out any way it wants! In Federalist No. 45 (last para), Madison said the regulation of commerce was a power not held under the Articles of Confederation, but was an addition “from which no apprehensions are entertained”.   Ours is a Constitution of enumerated powers only!

But today, the clause is cited as authority for federal takeover of medical care! This redefinition of the clause resulted from a radical transformation in judicial philosophy. Two cases illustrate this transformation:

In Bailey v. Drexel Furniture Co. (1922), the Supreme Court reviewed a federal excise tax on profits from sales of child-made products. The Court said “the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a matter completely the business of the state government under the Federal Constitution” (p 39), and:

“…Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. …such…would…break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States…” (p 38)

But in Wickard v. Filburn (1942), the Court said the “commerce clause” extends to local intrastate activities which “affect” interstate commerce, even if the activities aren’t “commerce”!  The Court also asserted that Congress has power to regulate prices of commodities and the practices which affect such prices!

Thus, if you have tomato plants in your back yard for use solely in your own kitchen,  you are “affecting” “interstate commerce” and are subject to regulation by Congress. The court’s reasoning is this: If you weren’t growing tomatoes in your back yard, you’d be buying them on the market. If you were buying them on the market, some of what you bought might come from another State.   So!  By not buying them on the market, you are “affecting” “interstate commerce” because you didn’t buy something you otherwise would have bought.   See?   And we have to stand up when these people walk into a room!

Charles Evans Hughes (Chief Justice,1930-1941) said the Constitution is “what the judges say it is.”

This is how the concept of a Constitution with an objective meaning easily learned from an old American dictionary, The Federalist Papers, & Madison’s Records of the Federal Convention of 1787, was taken away from us; and replaced with the judges’ claim that the Constitution is an evolutionary document which means whatever they say it means.

The reason it would take Megyn Kelly “days and weeks of research” to answer the question – instead of the five minutes it took us, is because she would search Supreme Court opinions to analyze the evolution of their “commerce clause jurisprudence” to try to figure out how they would answer the question.

They have taken our Constitution away from us. Let us demand its Restoration.

October 7, 2009; revised Nov. 14, 2014
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October 7, 2009 - Posted by | Commerce clause, Health Care, Interstate Commerce Clause, obamacare | , , ,

71 Comments »

  1. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by How our Federal Constitution “Secures” our God Given Rights | NCRenegade | December 2, 2014 | Reply

  2. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by Huldah: How our Constitution “Secures” our God Given Rights | USA NEWS FIRST | December 1, 2014 | Reply

  3. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by How our Federal Constitution “Secures” our God Given Rights « Publius-Huldah's Blog | December 1, 2014 | Reply

  4. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by HOW OUR FEDERAL CONSTITUTION “SECURES” OUR GOD GIVEN RIGHTS | November 29, 2014 | Reply

  5. […] of commerce as they were transported thru the States for purposes of buying & selling.  Go HERE for the […]

    Pingback by How our Federal Constitution 'Secures' our God Given Rights | American Clarion | November 18, 2014 | Reply

  6. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by How our Federal Constitution “Secures” Our God Given Rights » Sons of Liberty Media | November 17, 2014 | Reply

  7. […] of commerce as they were transported thru the States for purposes of buying & selling. Go HERE for the […]

    Pingback by How our Federal Constitution “Secures” our God Given Rights | Grumpy Opinions | November 16, 2014 | Reply

  8. […] 4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance? […]

    Pingback by The Balance of Powers Act - People Are Destroyed For Lack Of Knowledge - Sons of Liberty Media | August 30, 2014 | Reply

  9. […] for purposes of buying and selling. Until the mid-1930’s, this was widely understood. Here is a full proof of the original intent of that clause and the story of how the supreme Court usurped power over […]

    Pingback by Mark Levin’s “Liberty” Amendments: Legalizing Tyranny « Publius-Huldah's Blog | April 25, 2014 | Reply

  10. […] for purposes of buying and selling. Until the mid-1930′s, this was widely understood. Here is a full proof of the original intent of that clause and the story of how the supreme Court usurped power over […]

    Pingback by Mark Levin’s “liberty” amendments: legalizing tyranny | Parker County Blog | April 16, 2014 | Reply

  11. […] for purposes of buying and selling. Until the mid-1930’s, this was widely understood. Here is a full proof of the original intent of that clause and the story of how the supreme Court usurped power over […]

    Pingback by Mark Levin’s “Liberty” Amendments: Legalizing Tyranny | Grumpy Opinions | April 14, 2014 | Reply

  12. […] 4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance? […]

    Pingback by The Balance of Powers Act – How People Are Destroyed For Lack of knowledge | The Constitution Sentinel | March 26, 2013 | Reply

  13. […] 4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance? […]

    Pingback by The Balance of Powers Act – How People Are Destroyed For Lack of knowledge « Publius-Huldah's Blog | March 25, 2013 | Reply

  14. […] Regulating trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by NULLIFICATION DENIERS: WHAT JAMES MADISON REALLY SAID PART 1 & 2 | Jericho777's Blog | February 6, 2013 | Reply

  15. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Liberty 02/01/2013 (p.m.) « Liberty in the Breach | February 1, 2013 | Reply

  16. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Unified Patriots | February 1, 2013 | Reply

  17. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Publius Huldah: "James Madison Rebukes Nullification Deniers" | USA NEWS FIRST | January 31, 2013 | Reply

  18. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by James Madison Rebukes Nullification Deniers. « Publius-Huldah's Blog | January 31, 2013 | Reply

  19. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Grumpy Opinions | January 31, 2013 | Reply

  20. […] Regulating trade & commerce, so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Illinois Conservative Beacon | January 28, 2013 | Reply

  21. […] trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said « Veteran Patriot | January 28, 2013 | Reply

  22. […] trade & commerce, so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said « Set You Free News | January 27, 2013 | Reply

  23. […] Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here]; […]

    Pingback by The “Taxing Clause”, Five Lawless Judges, and obamacare. « Publius-Huldah's Blog | July 5, 2012 | Reply

  24. […] Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here]; […]

    Pingback by The ‘Taxing Clause’, Five Lawless Judges, and ObamaCare | The Constitution Sentinel | July 3, 2012 | Reply

  25. Well researched I guarantee only A handful in Congress know or care to know half of this! A pox on the houses of both parties who have managed to destroy this Republic!

    Comment by David Sparks | July 2, 2012 | Reply

    • Thank you, dear.

      But the Problem is the American People who send to Congress legislators who don’t know our Founding Principles.

      And the reason the People send such to Congress is b/c The American People haven’t bothered to learn our Founding Principles.

      The pox is on the People. They are the guilty ones. The politicians are the symptoms of our own moral rot.

      Comment by Publius/Huldah | July 4, 2012 | Reply

      • … I CONCUR 100%

        Comment by YoOle Me | July 4, 2012 | Reply

  26. […] Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here]; […]

    Pingback by The ‘Taxing Clause’, Five Lawless Judges, and ObamaCare | Grumpy Opinions | July 2, 2012 | Reply

  27. […] Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here]; […]

    Pingback by The “Taxing Clause”, Was Chief Justice Roberts Right? « Off My Front Porch-Conservative Ranting | July 2, 2012 | Reply

  28. Why does anyone believe that governments–federal, state, municipal or whatever–ought to have the kind of power the interstate commerce clause claims they do. I know it is believe they do but what arguments, reasoning lies behind it? After all, the idea is completely inconsistent with the political philosophy of the Declaration of Independence–e.g., the unalienable right to liberty.

    Comment by Tibor Machan | June 28, 2012 | Reply

    • As I explain in my blog post constitutionalism.blogspot.com/2012/06/health-care-act-upheld.

      Holding that the individual mandate is a tax does not resolve all questions, and this holding raises some important issues. Any tax is on something. What is this tax on? It is on not doing something. That is as much of a reach as a “regulation” prohibiting not doing something. But the Roberts opinion does not adequately explain or settle that issue.

      Now the doors of binding stare decisis have been opened to all kinds of taxes on not acting. We might consider a few kinds of inaction on which a tax might be imposed:

      1. Not smoking. After all, if more people smoked it would kill them off faster and thus reduce medical costs for them.
      2. Not driving well. Arguably this is what traffic fines already actually are.
      3. Not losing weight. Obvious justification.
      4. Not exercising enough. Might present an enforcement problem but could install monitor chips in everyone.
      5. Not getting a regular medical checkup.
      6. Not doing all your homework.
      7. Not brushing your teeth.
      8. Not cutting your hair.
      9. Not voting in every election.
      10. Not having a government-issued ID.

      Some argue Congress would never attempt to impose such taxes. And until now neither were state legislatures like to do so. But this holding is a breakthrough for the concept of what is deemed a proper taxable object, one that is likely to be taken up by state and local governments hungry for revenue or power. That makes it a government-expanding precedent as important as Wickard, and perhaps even more dangerous. If you don’t have the power to make people do something, tax them for not doing it, then throw them in jail if they don’t pay the tax. And of course there is no limit on taxes on doing nothing, such as 100% of a taxed business transaction. It could be an amount impossible to pay, making it effectively a penal police power.

      The dam against unlimited government has been broken. Repealing the Health Care Act is not enough. The damage to our jurisprudence is far greater than most people yet realize.

      Comment by constitutionalism | June 28, 2012 | Reply

      • SCOTUS used the so-called “taxing clause” to justify obamacare: Congress has the power to “tax”; therefore, Congress may tax for any purpose whatsoever – so say 5 people on that court. obama never wanted the individual mandate forcing people to buy health insurance; he always wanted to tax people directly and have the federal government be the single payer. That is what 5 people gave him yesterday.

        “Binding stare decisis”? Precedent is never binding – it can be discarded like an old snake skin.

        The problem has never been the federal government – the problem is the Ignorance & Pride, Apathy, Irresponsibility, Laziness, and Avarice of the American people.

        What I am trying to do is wake up the few People with brains & moral character. And educate them into original intent as shown by The Federalist Papers.

        Comment by Publius/Huldah | June 29, 2012 | Reply

      • >>> “If you don’t have the power to make people do something, tax them for not doing it, then throw them in jail if they don’t pay the tax.” …

        THIS PROBLEM IS A NON-ISSUE WITHIN THE ACT: IRS HAS PLENARY AUTHORITY OVER THE ENTIRE PROCESS!!! AND @ pp.2001 ~ 2005, within 36-months of the act’s signing — i.e. BY 23 March, 2013: it mandates “identification inserts” (designated, in the Food, Drug and Cosmetics Act of 2004, to be RFID chips) TO OBTAIN medical services of all types — specifically DESIGNATING VA patients; ALL, just 8 quick months away, and an ACTUAL (Rev. 14:9-12) ETERNITY DEATH WARRANT for true Faithful Christian souls!!!

        Comment by YoOle Me | July 4, 2012 | Reply

    • Tibor, lawyers were all told in law school that the interstate commerce gives the federal government the extensive control over “commerce” as set forth in Wickard v. Filburn. We were also told that SCOTUS decides what the Constitution means – that THEY have sole and complete authority to decide.

      Most people – lawyers included – believe whatever they are told. SCOTUS just seized the power in the Wickard case and people went along with it. B/c they had already been conditioned to believe that the Constitution means whatever SCOTUS says it means.

      Yes, you are right! Wickard and the cases following Wickard are totally inconsistent with our Constitution! But lawyers don’t know that. I never heard of a lawyer who read the Constitution in law school. We didn’t. Instead, we read SCOTUS decisions explaining why the federal government has power to regulate whatever it pleases.

      And the People got corrupted with the unconstitutional handouts: ss, medicare, medicaid, loans, price supports, subsidies, etc. So everyone had a vested interest in NOT returning to the limited government our Constitution created.

      Comment by Publius/Huldah | June 29, 2012 | Reply

  29. As I was doing some research on this issue, it dawned on me why would the States even grant the government that kind of power in the first place. Upon further reading it is my opinion that the original intent of the ‘Commerece Clause’ was to protect the States from acting as individual nations by themselves and as others have indicated precluding tarriffs, taxes, etc. Thus the States would have gone along with that supposition and ratified the inclusion into the Constitution. Had they known it was eventually to be used to ram health care and other programs down the States and ‘we the people’ throats it would have never made it into the document.

    Comment by Merbeau | May 6, 2012 | Reply

    • Welcome Merbeau, and thanks for your comment.

      True, the States never DID grant that kind of power to Congress.

      But to find the original intent of the Constitution, always go first to The Federalist Papers. They are authoritative as to the genuine meaning. See, e.g., the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School. They said:

      …on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning … (page 83)

      Here is the link: xtf.lib.virginia.edu/xtf/view?docId=2006_04/uvaGenText/tei/bov_18250304.xml&query=true

      In the above paper I give all the relevant quotes from The Federalist Papers and from Madison’s Journal of the Federal Convention; and so really do prove the original intent of that clause – without any doubt.

      Note that in Federalist No. 45 (last para), Madison said the regulation of commerce was a power not held under the Articles of Confederation, but was an addition “from which no apprehensions are entertained”.

      I know it is a bit daunting to start reading The Federalist Papers! But in various of my papers, I show how easy they are to research using the online edition I use. It has a search function. But it does take a while to get used to the last 18th style of writing. But after a while, one comes to like it.

      Comment by Publius/Huldah | May 6, 2012 | Reply

    • Yes, that is the history of it but what is the logic of it? Why in a free country is this clause deemed acceptable as it is now understood (post New Deal)?

      Comment by Tibor Machan | June 28, 2012 | Reply

    • yES! you got it… that was the primary reason … at the time states had different weights and measures and
      conflicting interests on produce, agriculture sales across lines… so the states made taxes and penalites for commerce across borders… thinking it was a good idea for their interests… cant blame them for not being widely educated and so forth… but thats why the founders gave us a Republic so we could “hire” representatives to be smart and make rules for us all… hence … the commerce clause… but 200 years later it has been construed by the “progressive” element .. into a carte blanche for all and every kind of rule,regulation,tax and penalty…and intrusion into our lives.
      but you already know this… and probably a lot more… but you got it. and more of us need to know that..thatnks

      Comment by Ltp | June 20, 2013 | Reply

  30. […] Furthermore, what he says is demonstrably false. The Federalist Papers & Madison’s Journal of the Federal Convention show that the purpose of the interstate commerce clause is to prevent the States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. For actual quotes from Our Framers and irrefutable Proof that this is the purpose of the interstate commerce clause, see: “Does the Interstate Commerce Clause Authorize Congress to Force Us to Buy Health Insurance?” […]

    Pingback by Why Congress may lawfully require you to buy Guns & Ammunition | Grumpy Opinions | May 3, 2012 | Reply

  31. […] of the interstate commerce clause, and more irrefutable proof from primary sources, see: Does The Interstate Commerce Clause Authorize Congress To Force Us To Buy Health Insurance?  Progressives!  Read it and rebut it, if you can. […]

    Pingback by A Progressive Perverts the Commerce Clause, but O’Reilly Gets it Right! « A Nation Beguiled | April 18, 2012 | Reply

  32. […] & grotesquely unconstitutional expansions of federal control over our lives [e.g., their “interstate commerce clause” & “general welfare clause” jurisprudence]; they outlawed the Faith of Our Fathers […]

    Pingback by The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges. | April 3, 2011 | Reply

  33. […] & grotesquely unconstitutional expansions of federal control over our lives [e.g., their “interstate commerce clause” & “general welfare clause”jurisprudence]; they outlawed the Faith of Our Fathers & […]

    Pingback by The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges « Veteran Patriot | March 30, 2011 | Reply

  34. […] & grotesquely unconstitutional expansions of federal control over our lives [e.g., their "interstate commerce clause" & "general welfare clause" jurisprudence]; they outlawed the Faith of Our Fathers […]

    Pingback by THE OATH OF OFFICE « A Nation Beguiled | March 29, 2011 | Reply

  35. […] for you to learn are these:  (1) ENUMERATED POWERS (2) Why neither the “GENERAL WELFARE“, the INTERSTATE COMMERCE nor the “NECESSARY & PROPER” [see linked paper at para 13] clauses authorize Congress (or […]

    Pingback by What Should States Do When the Federal Government Usurps Power? | Conservative Caller | December 19, 2010 | Reply

  36. […] you to learn are these:  (1) ENUMERATED POWERS (2) Why neither the “GENERAL WELFARE“, the INTERSTATE COMMERCE nor the “NECESSARY & PROPER” [see linked paper at para 13] clauses authorize Congress (or […]

    Pingback by What Should States Do When the Federal Government Usurps Power? – Minnesota Tenth Amendment Center | December 17, 2010 | Reply

  37. […] “OK”, you say, “but what about ‘the commerce clause‘ (Art. I, §8, cl. 3)?  Doesn’t that give Congress power to pass laws on any subject which […]

    Pingback by CONGRESS' ENUMERATED POWERS | October 21, 2010 | Reply

  38. Hello and Good Morning PH:
    An interesting occasion occurred yesterday morning but one which gave hope to me. I was attending a political breakfast yesterday morning and our Representative was there. I started a discussion with him about the 21 Enumerated Powers given to the Federal Government and how our current Fed. is going beyond their powers. His comment: “you and I have spoken of this before, and yes, our current majority IS going beyond their bounds but they don’t care.”
    So based on his comments, I kept approaching him on what he plans on doing about it. His further comments: ” The current majority KNOWS that what they are doing is beyond their legal bounds to do, but they also know that the Courts will go on previous precedence and NOT by what the Constitution states.” So again, I asked him, “what are you going to do about it”? His comment: “you need to replace the majority so we can do something about it.”
    Now, while I have heard this Representative before, and he is definitely a conservative, his comments to give them the majority again rings hollow on my ears. In the previous 8 years, the GOP had a majority and they also went beyond their Enumerated Powers from what I can tell.
    In my upcoming education class at the next TEA party Movement Event (Politician forum), I plan to further elaborate on the 21 Enumerated Powers, the General Welfare and Interstate Commerce clauses to show the attendees how our government is usurping the Constitution, when it started (Likely around the FDR timeframe), and more importantly, I’m anticipating the question: “WHAT CAN WE DO ABOUT IT”?
    And that is my question to you: “In your opinion, considering the above, what can WE do about it now especially knowing that our courts mostly appointed judges sitting in those chairs”?
    I look forward to your comments and thoughts. I plan on presenting your views to the attendees next Thursday at our TEA party Movement meeting.

    With Kindest Regards,
    RP

    Comment by RP | May 9, 2010 | Reply

    • Hi, RP!
      Who is your Representative? I didn’t know there were any besides Michele Bachmann & Ron Paul who knew this. You can email me if you like.

      1)We need to do what YOU are doing: teaching the Folks & our Representatives & Senators about the enumerated powers. How limited they are! That all other powers are reserved by the States & the People.

      2) Yes, the Republicans were as bad as the Democrats in ignoring the constitutional limits on their powers. Bob Dole was one of the worst: Boasting about how he carried the 10th Amendment around with him, and then saying that the Americans with Disabilities Act was his proudest legislative accomplishment.

      3) We hear all around us the BIG LIE that federal judges have “lifetime appointments”. People hear that Lie, repeat it, and spread it to others. This creates a mind-set that federal judges are immune. But the TRUTH is that they serve during “good Behaviour” only (Art. III, Sec. 1); and can be impeached, convicted and removed from the bench for usurpations (Federalist No. 81, 9th para).

      Representatives & Senators believe the lie that it’s up to the Supreme Court to decide what the Constitution means. We have to teach them that THEY have the power to decide whether federal judges step over the line with their opinions. And when they do, Congress need to man-up and kick them off the bench. [But we need a good president in the white house first!]

      In my paper on what can States do when the federal government usurps power, I cited the Federalist Papers where Hamilton & Madison said We The People are the ultimate authorities on what the Constitution means; and that WE are supposed to be enlightened enough to distinguish between a legal exercise & an illegal usurpation of power. So, it is up to us – THE PEOPLE – to learn the Constitution and elect representatives & senators who will obey it. For too long, we delegated our responsibilities to the people we elected and let them do whatever they wanted. And we passively went along with whatever they did & told ourselves it was “the law”; w/o understanding that any pretended “law” made by Congress which is not within its delegated powers is NO LAW AT ALL, but a mere usurpation, and deserves to be treated as such.
      Federalist No. 16 (10th para) & No. 33 (6th & 7th paras) – both by Alexander Hamilton.

      Comment by Publius/Huldah | May 11, 2010 | Reply

    • I have recommended several things to neuter Obama care.

      1. Elect a Republican house and then a Speaker who will refuse to allow $1.00 of support for Obama care out of House. I think John Boehner is in this camp. It would behoove us to get a firm commitment.

      2. Elect representatives who believe Obamacare is unconstitutional and will strongly support the total defunding of it. Insist on a public commitment.

      3. States should refuse to participate in exchanges. The problem with this approach is the President can withhold other funds [Medicare, Medicaid,Food stamps] for non compliance with Obama care. I haven’t read the details in the Ocare bill, but that is the standard threat that hangs over our heads as citizens of states. [Here lies a strong need for an Amendment to fix this legalized extortion.]

      4. Civil disobedience. Individuals should refuse to do anything against their own personal best interests — including paying a fine to the IRS for not having sufficient insurance. What would help is the people rich enough to make a viable economic decision to not have insurance to publicly refuse to pay the fine and suffer the consequences in public with no court records of government communications withheld. On any court order to silence or withhold information, appeal the muffling order to the SCOTUS. The very concept of “we the people” wanting to privately punish someone is so repulsive that this would be another area of civil disobedience if SCOTUS fails to support openness of litigation.

      5. Elect a super [veto-proof] majority in House and Senate and repeal the entire bill. All candidates should support this.

      6. Elect a new president and repeal without a veto-proof majority.

      Those are things individuals and electorates can do.
      Finally, continue to speak out often against the new Obama Ponzi scheme call Obamacare.

      [PS: Social Security, Medicare and Medicaid are all funded with the same unsustainable financing scheme and all will drag the country down to the level of Greece sooner or later.]

      Comment by Ed Bradford | May 11, 2010 | Reply

  39. My problem with the people who wish to look only at the words as written is they can’t explain them. How does growing wheat in my back yard for my own consumption constitute “commerce” or “commerce among the several states”? “Among” requires two or more things. It’s not “among state” it’s “among [the several] states”. Growing wheat in my back yard for my personal consumption can never be considered interstate commerce. Even today with our deplorable public education system, there is no English teacher that would allow “interstate commerce” to mean growing wheat in my back yard for personal consumption. How could “among the several states” be so misconstrued?

    A court that varies so far from the obvious is problematic. If they can do that, they can tell me I have to buy a Cheverolet to help Government motors. They can stretch the constitution to support any law whatever — there is no limit to the reach. The Wickard v. Filburn decision came shortly after the court was threatened with the Roosevelt court packing scheme. When that happened all the decisions seemed to suddenly go FDR’s way. W-F was a 5-4 decision. While stare decisis is procedural culture among the legal profession, it is not compulsory. W-F, and now 2004 – Gonzalez vs. Raich [medical marijuana] should both be overturned. Difficult part is that G-R was a 6-3 decision and Justice Scalia wrote a concurring opinion. That is scary to me.

    Both of these opinions should be overturned. If American wants the federal government to manage wheat grown in my back yard for my consumption and to be able to force me to buy a Cheverolet and to force me to buy health insurance from a private company, the constution should be amended and those specific powers added. Until that time, “commerce among the several states” means exactly what it sounds like it means and W-F,G-R, ObamaCare are all unconsitutional. The constitution requires NOTHING from me and there is no amount ajudicating that will convince me (and a very large number of other people, lawyers included) otherwise.

    Comment by egbegb | May 9, 2010 | Reply

    • AMEN! What you say is pure Truth. What has always amazed me is why so many people have for so long, just blindly gone along with whatever the federal courts said!

      Comment by Publius/Huldah | May 11, 2010 | Reply

  40. I just want to hear someone address the fact that the Federalist Papers was a propaganda document designed to persuade the states into ratifying the constitution. Additionally, it is beyond doubt that Madison and Hamilton did not agree on what the Papers should say. How do you justify the claim that the Federalist Papers is “THE MOST AUTHORITATIVE COMMENTARY on the meaning of the Constitution”? as though the debate about textualism/formalism/original public meaning/the constitution is whatever the justices say it is somehow has an easy answer? Thanks

    Comment by Steve | May 6, 2010 | Reply

    • 1. Certainly, The Federalist Papers were written to explain the proposed Constitution and to induce ratification! Nothing wrong with that. Lawyers write memos of law & briefs all the time which seek to explain their position & to induce the judge to agree with them.

      2. Can you please cite instances where Madison & Hamilton did not agree on what the Papers should say? I have not found any such conflicts w/in The Federalist Papers. Please show me which Papers are in conflict.

      3. It seems self-evident that a writing which is designed to explain & induce, becomes the authoritative explanation, when relied upon. Certainly, our Founders saw the Federalist Papers as the most authoritative commentary on the genuine meaning of the Constitution. …

      Only later did the federal judges begin to assert that the Constitution means what THEY say it means. Of course, such a claim is in effect an assertion that the Constitution is subject to their wills; instead of them being subject to the Constitution. PH

      Comment by Publius/Huldah | May 6, 2010 | Reply

  41. Have you ever read the Commerce Clause exactly as it is written WITHOUT considering the comments of the Founders?

    If you do this, you will find that the Commerce Clause only gives Congress the power to regulate commerce among the STATES (not among or between PEOPLE living in different States).

    Again, you have to be a textualist to be able to read this carefully and to NOT consider outside sources.

    Comment by Lawyer | April 13, 2010 | Reply

    • No, Friend, what you suggest is precisely what we may NEVER do. We may NOT sever the text of the Constitution from The Federalist Papers, and then read in our own interpretations. That is what the federal judges have done and how they have destroyed our constitutional Republic.

      The Federalist Papers were written to explain the proposed Constitution to the People and to induce them to ratify it. THIS is what makes The Federalist Papers THE MOST AUTHORITATIVE COMMENTARY on the meaning of the Constitution. So! To understand the “original intent” of any provision of the Constitution, we MUST look it up in The Federalist Papers. If we don’t consider that “outside source”, we are left with nothing but our own perspectives & opinions. THIS mindset is what has lead to the destruction of constitutional government. Do you see?

      Comment by Publius/Huldah | April 13, 2010 | Reply

      • No, sorry, you’re wrong. You’ve got it backwards.

        The way to interpret a legal document is to read the words as writ. It is improper to look outside the four corners of the document if the words are clear.

        Here (commerce clause), the words are clear. It is improper to look outside the document to change the plain meaning of the words.

        Once you start reading the Federalist Papers when you don’t need to, you’ve opened it up to all the papers, notes, diaries, journals, letters, etc. that were written at or near the drafting and this is why no one can agree on what the Constitution says.

        Again, go back to 1L and study the rules of statutory construction.

        Comment by Lawyer | April 15, 2010 | Reply

      • You sound like a self-taught patriot (or a new lawyer) who has never studied Logic. (1) Read my comment about WHY the Federalist enjoys its unique status as THE most authoritative commentary on the meaning of The Constitution. The letters, diaries, etc. do not fall within that same class.
        (2) The reason people do not agree on what The Constitution means is because they do what YOU insist on doing: reading in their own interpretations based on their subjective internal frames of reference instead of being guided by an external fixed objective standard. The Federalist provides such a fixed objective standard. Read them! Hamilton & Madison were geniuses in political philosophy, and far better educated that the Folks of today. They could THINK! The Folks of today can’t!

        Comment by Publius/Huldah | April 15, 2010 | Reply

      • I’ve only been a lawyer for 30+ years now and I’ve only authored about 200 published opinions, clerked for a federal judge and written law review articles on federal law. I’m sure that pales in comparison to your experience and the others who post here.

        On the other hand, regardless of your experience, I’ll concede a point if it makes sense. Many so-called ‘experts’ are full of misinformation.

        Again, you’ve got it backwards and you need to go back to first year law school. Your argument in reply consists of nothing but repeating your love for the FP and an ad hominem attack on me.

        Go back to 1L and check out STATUTORY CONSTRUCTION again.

        Again, you don’t go outside the 4 corners if the words are clear. Otherwise, you will lose the original intent of the parties. The logic is impervious. Here, the words are clear and you’ve opened it up to mischief by looking elsewhere.

        Open your mind. Do you see yet?

        Comment by Lawyer | April 15, 2010 | Reply

        • Dear Lawyer, Us young folks have a more nimble mind than some of you old codgers so we understand things quicker. (BTW yesterday was my 76th Birthday.)As to your reference to outside sources. The Constitution is THE source. It was written in English and is easily understood by the objective reader without outside sources–except maybe, a good Throrndale-Barnhart Dcitionary. As Publius explains, if your knowledge of the English language is not sufficient for understanding, then by all means consult someone who knows. My suggestion would be Publius Huldah. Also, as you will notice, Article VI makes the Constitution itself as the “Supreme Law of the Land”, not the Supreme Court and not the Federalist Papers.

          Comment by Jerry McDaniel | August 27, 2010 | Reply

          • Hello, dear Friend Jerry! Congratulations on your birthday!
            We do need the Federalist Papers to understand the Constitution! The Federalist Papers were written to explain the Constitution and to induce the People to ratify it.

            They provide the context which we must have to understand. And if we don’t consult a source which provides the objective context, we are left with nothing but our own subjective understandings of what it means. There is no way we could understand the “interstate commerce” clause w/o the Federalist Papers. E.g., watch Judge Andrew Napolitano pontificate on the “interstate commerce clause”: he focuses on the word “regulate”, which he says means to “make regular”. Well, that isn’t what it means at all! Hamilton & Madison tell us in the Federalist precisely what it means!

            Also, both Thomas Jefferson & James Madison said The Federalist Papers are the best evidence as to the genuine meaning of the Constitution: See:

            http://xtf.lib.virginia.edu/xtf/view?docId=2006_04/uvaGenText/tei/bov_18250304.xml&query=true

            Granted, some of the clauses are very straightforward. But others can not be understood w/o reference to The Federalist. I also consult from time to time, Madison’s Journal on the Federal Convention.
            Regards, PH

            Comment by Publius/Huldah | August 27, 2010

      • Dear Younger Colleague: The federal courts have destroyed our Constitution because they do just what you insist on doing. When one construes any provision of the Constitution without reference to a fixed objective standard, there is nothing left but the mindset of the one doing the construing. The issue is thus one of FIXED OBJECTIVE PRINCIPLES v. subjective interpretations of the “words” used in the Constitution.

        I am familiar with Sutherland on statutory construction. Definitions written into statutory schemes are an important part of such schemes. These definitions are fixed. And when construing the Constitution – which is “fundamental law” i.e., the standard by which the constitutionality of statutes is measured – one must likewise be guided by “original intent” (just as when construing statutory schemes, one is guided by the statutory definitions). And the only way to learn “original intent” is to consult the Federalist and at times, Madison’s Journal of the Constitutional Convention.

        If the federal courts are not guided by “original intent”, then they in effect sit as a continuing constitutional convention amending the Constitution at will. [This, of course, violates Art. V.]

        Word definitions are like the clouds in the sky – continually changing throughout the years. If we go by “original intent”, we must understand “commerce”, “welfare”, etc. the same way the Framers understood them. Otherwise, the Constitution “evolves” and that means that we have no Constitution! We are left with federal judges and their clerks writing their own personal understandings of the “words” into their opinions.

        Questions: (1) What do YOU think the “interstate commerce” clause means? (2) Why should I give YOUR opinion more deference than I give to Hamilton’s and Madison’s explanations of the “original intent” of this clause?

        Comment by Publius/Huldah | April 15, 2010 | Reply

      • Hello, again

        You seem very impressed with your assumption that you are older than everyone in the world. You must be VERY old to be comfortable with that assumption because you know what they say about assumptions…

        I’ll tell you what the words of the Commerce Clause mean but you don’t need to give my explanation any more credence than any other English speaking person on the planet.

        The Commerce Clause means exactly what it says: Congress can regulate (make regular) commerce (commercial transactions) among the States (not the people).

        It’s not my opinion – it’s what the words mean. It’s called English. It’s not difficult to read and you don’t need a JD or a dictionary to get through it with ease in a few seconds. You also don’t need to wade through the FP or any other secondary source.

        Surely you learned this in law school! You don’t consult outside sources if the words are plain. (Was it so long ago that you’ve forgotten?)

        You seem to think the FP, Madison’s journals and his thoughts are somehow the beginning and end of all Constitutional interpretation. Clearly, they are not. Others spoke and wrote on these issues before, during and after ratification and their opinions may need to be considered in an appropriate case. This is not that case.

        Your position reminds me of Maslow’s observation:

        “He that is good with a hammer tends to think everything is a nail.”

        The Constitution is the law – NOT the FP. It’s great that you’ve apparently devoted your rather lengthy life to memorizing the FP but that hammer isn’t needed for this problem. Sorry.

        If the law is clear, follow it. If you don’t like the result mandated by the plain language or you think the drafters made a mistake, then amend the Constitution.

        Otherwise, as we have seen (Wickard v. Filburn is the poster child), you open it up to debate over what Madison meant or whether Hamilton prevailed on this or that issue, etc., ad nauseum.

        At times, yes, you have to go to outside sources to glean the meaning for a difficult passage. In such cases, other rules of construction will apply. But, you don’t have to go there for this issue and it is not appropriate to do so.

        Before I toddle off for my dialysis and afternoon nap here at the Sunnyville Retirement Center in Florida, here’s one more thought that you will no doubt enjoy:

        A university professor went to visit a famous Zen master. While the master quietly served tea, the professor talked about Zen. The master poured the visitor’s cup to the brim, and then kept pouring. The professor watched the overflowing cup until he could no longer restrain himself. “It’s overfull! No more will go in!” the professor blurted. “You are like this cup,” the master replied, “How can I show you Zen unless you first empty your cup.”

        I’ll leave you to your overflowing cup of tea.

        Comment by Lawyer | April 15, 2010 | Reply

      • You said the “interstate commerce” clause means that Congress may make laws which “regulate (make regular) commerce (commercial transactions) among the States (not the people).”

        (1) Is there any criteria or standard for determining which laws make commerce “regular” and which do not? What is the criteria or standard? Or is it majority rule in Congress? If you were writing an opinion for a federal judge on this issue, is there any criteria or standard for determining “regularity” which YOU would apply? What? Or, if YOU think the law makes commerce “regular” is that the standard (assuming you can sell your view to a majority of the judges on your panel)?

        Here is my difficulty with your position (and I have heard others recite similar positions): With the Federalist Papers & Madison’s Journal of the Federal Convention, we know exactly what that clause means. It is fixed. But with the definition you use, whatever a majority in Congress or a majority of federal judges on a panel assert will make commerce “regular” becomes enshrined into “law”. And thus, the clause ends up meaning in practice whatever the people with the power say it means.

        2) What does it mean to make commerce “regular”? What is the difference between “regular” commerce and “irregular commerce”?

        3) STATES engage in commerce? Or do businesses & people in one State engage in commercial transactions with businesses and people in other States? The lettuce I buy in the supermarket is grown by a farmer in California. The State of California doesn’t grow the lettuce. And my grocery store in my State buys the lettuce – my State government doesn’t buy the lettuce from the State of California. Rather, the transaction is between a business in one State with a business in another State.

        Comment by Publius/Huldah | April 15, 2010 | Reply

  42. […] to learn are these:  (1) ENUMERATED POWERS (2) Why neither the “GENERAL WELFARE“, the INTERSTATE COMMERCE nor the “NECESSARY & PROPER” [see linked paper at para 13] clauses authorize […]

    Pingback by What Should States Do When the Federal Government Usurps Power? « Publius-Huldah's Blog | April 4, 2010 | Reply

  43. […] enumerated powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform […]

    Pingback by Refuting the Bad “Health Insurance vs Auto Insurance” Analogy: A Lesson In Federalism « www.offmyfrontporch.com | December 22, 2009 | Reply

  44. Charles Evans Hughes (Chief Justice,1930-1941) said the Constitution is “what the judges say it is.”

    Ms Huldah~ when I read these words I thought of Richard Nixon’s words when he said, “If the president does it, it is legal.”

    I think Congress thinks the same thing today in passing health care. If they pass it into law then, “it’s legal.”

    As far as the Supreme Court being the ultimate authority, you might be interested in this article by Timothy Baldwin called, The Marbury vs Madison Mantra.

    Comment by Mike | December 22, 2009 | Reply

  45. […] powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform […]

    Pingback by Refuting The Bad "Health Insurance - Auto Insurance" Analogy: | December 19, 2009 | Reply

  46. Because this “living document” baloney has been going on so long, it will be hard to refute Congress’s claim that they have power to regulate health insurance. This, despite the fact that with property and casualty insurance the states still regulate it.

    Some of the most liberal current Senators were former state insurance commissioners, such as Bill Nelson, (D-FL) who whipped All-State and State Farm into “line” so much with his liberal interpretations of their policies following Hurricane Andrew that they could no longer operate in Florida profitably. Andrew occurred in 2002, I believe.

    Since then, Florida has had half a dozen hurricanes, but none worse than that Homestead, FL hurricane where those carriers were ordered to rebuild insured houses despite the fact that exclusions prevailed for surface water, flood water, and failure to keep homes improved or up to par with building codes.

    For example, most of those homes didn’t have metal straps tying down the walls to the roof trusses every 16 inches which would have prevented more than half of the damage. Those homes didn’t have foundations out of the ground, allowing surface or flood water to enter into the homes, causing damage. Carriers ended up paying for everything, despite what they did not intend to cover as above. Had that gone to a liberal Florida court, the people would probably have prevailed but right is right and if you contract for something and it is not in the insurance contract it isn’t right to require that party to perform.

    Buildings today are built of concrete block which are further strengthened by pouring concrete into the blocks every so often.

    The only way we can win the Health Care constitutional question is to succeed from the union. I believe that is a real possibility and would be favored by a lot of southern folk even today. Washington has gotten too big, and it taxes too heavily. You watch – once they pass Cap and Trade, a VAT tax, and Health Care it will cost so much to live in America people will be thinking of succession. That, or moving to a “free country,” because by then America won’t be free and the Constitution will be worthless. Don White

    Comment by Don Whie | October 19, 2009 | Reply

  47. Love your method of analysis, PH. Very methodical and straightforward. I’m more use to being creative and imaginative, which doesn’t work with legal matters. Thanks for illustrating your method for all to see and to absorb. Your way of breaking things down and explaining how you do it are almost as important as the content. It teaches people how to think about Constitutional and legal matters.

    By the way, Wickard v. Filburn is a travesty and I am not sure how it can even be used as a precedent in a court. The reasoning is so tortured it makes me sick that a Supreme Court would approve of it. Reading these old court cases, like the ones you mentioned (and even ones in the early 19th century), makes one less surprised at the mess in this country we are now confronting. The federal government has unmistakably usurped power from the states and the people.

    I look forward to your next analysis. Perhaps we should discuss Fed. No 10 by the end of this weekend? I have been hung up with starting a new job and reading other works. I will try to make some remarks on Fed. No. 10 by very late tonight. Then we can drive forward.

    Best regards! Kyle

    Comment by Reasonsjester | October 10, 2009 | Reply

  48. You are right about Megyn Kelly, and Lis Wiehl, I think will always take the side that congress can rule over it’s citizens. I fear that unfortunately, whether Congress has the right or not to force people to buy insurance, in an inevitable lawsuit challenging this law, the Supreme court will side with congress. That the commerce clause was meant to keep Tennessee from taking it’s share of taxes or revenue from a shipment of apples from Kentucky to Alabama to what it empowers congress with today is unthinkable, yet has happened. I am looking for a copy of the Federalist Papers that have this index. Thanks for your insight.

    Comment by Paula Tyler | October 7, 2009 | Reply

    • Yes, the Supreme Court, as it is constituted today, probably would (5 to 4) approve the usurpations of Congress respecting the so-called “health care” legislation. Most judges got brainwashed in law school! We were taught in law school that the Constitution means whatever the judges say it means. Add to that [false] teaching, the fact that the prevailing philosophy of our time (pragmatism & existentialism, which people unconsciously absorbed from our culture) teaches that there are no fixed principles, it is no wonder that the judges on the supreme court think they have the right to sit as a continuing constitutional convention amending Our Constitution with every case they decide. PH

      Comment by Publius/Huldah | October 7, 2009 | Reply


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