By Publius Huldah.
Bill O’Reilly (Fox News) made our Framers proud when, on March 26, 2012, he correctly explained [probably for the first time ever on TV] the genuine meaning of the interstate commerce clause. O’Reilly’s guest was Big Government Progressive Caroline Fredrickson, Esq., of the inaptly named “American Constitution Society”. In trying to defend obamacare, she said that our Framers intended to grant to Congress extensive powers over the “national economy”:
“When the Founding Fathers adopted the Constitution, they put in the commerce clause ah specifically so that Congress could actually regulate interstate commerce. They envisioned a national economy, and we really have one now, and to the tune of over two trillion dollars, health care makes up a big big part of that and so it’s completely within the power of ah Congress to pass this legislation [obamacare] and to attempt to provide some reasonable regulation…”
But what she said is not true! Accordingly, O’Reilly responded:
“The interstate commerce clause was put in so individual States could not charge tariffs [for] going from one state to another. So, for example, Pennsylvania would say to New Jersey, ‘Hey, you can’t bring in anything here from New Jersey unless you pay us 2% on it.’ ”
Bravo, O’Reilly! That is precisely the purpose of the interstate commerce clause. James Madison, Father of our Constitution, wrote in Federalist No. 42 (9th para):
“… A very material object of this power [to regulate interstate 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…”
And Alexander Hamilton wrote in Federalist No. 22 (4th para):
“…’ 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 …”
So! What our Framers said was that the purpose of the interstate commerce clause is to authorize Congress to prevent the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling.1
But Fredrickson apparently has no idea what our Framers said. She dug deeper:
“Actually this was a major issue at stake in the adoption of the Constitution was the ability of our national government to deal with national issues and, let’s look a little bit at what’s happened in the 20th century…”
What? Our Framers made a “major issue” of their determination to grant to Congress power over whatever it might in the future deem to be a “national issue”?
Rubbish! What Fredrickson said is demonstrably false. Our Framers said the exact opposite of what she represented. In Federalist No. 45 (9th para), Madison identified the “national issues” Congress would be dealing with:
“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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….” [boldface mine]
In Federalist No. 39 (3rd para from end):
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.” [boldface mine]
and in Federalist No. 14 (8th para):
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.…” [boldface mine]
Do you see? Our Framers drafted a Constitution which established a Federation of Sovereign States united only for the limited purposes enumerated in the Constitution. The powers of each of the three branches of the federal government are carefully limited and defined. See: Congress’ enumerated powers, the President’s enumerated powers, and the Judicial Branch’s enumerated powers. Our Constitution does not delegate general legislative powers over the Country at large to Congress! Ours is a Constitution of enumerated powers only. And nothing – nothing – in the Constitution authorizes the federal government to control the provision – or denial – of medical care to The People. Thus, obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress by Our Constitution.
Folks! Do not believe what you hear people saying about Our Constitution on TV or the Radio. Most of them don’t know what they are talking about, or they are lying. Only rarely does anyone get it right as O’Reilly did. So you must check things out for yourself. And always demand Proof! PH
1 For a more definitive explanation of the genuine meaning 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. PH
April 17, 2012
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 said:
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 said
…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…
Madison’s Records of the Federal Convention of 1787 show:
…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 for Mr. Ellsworth’s comment that the power of regulating trade between the States will protect them against each other, and Tuesday, August 28 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!
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.
By Publius Huldah
1. With the U.S. Constitution, We The People created the federal government. It is our “creature”, and has no powers other than those We delegated to it in Our Constitution.
Webster’s American Dictionary of the English Language (1828), says re “constitution”:
“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.” [boldface mine]
If you, dear Reader, will study this paper and read the Constitution, you will know more about it than most State & federal judges, most law professors & lawyers, those who spout off on TV & radio, just about anybody in Congress, and the self-educated who fixate on their own idiotic theories. And you will certainly know more than anyone currently occupying any office in the executive branch of the federal government.
2. The federal government 1 has three branches: Article I of the Constitution creates the Legislative Branch (Congress) & lists its powers; Article II creates the Executive Branch & lists its powers (President); and Article III creates the Judicial Branch (federal courts) & lists its powers.
In this paper, we will consider only the enumerated powers of Congress. But the powers of the other two branches are likewise strictly limited and enumerated.
3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea! Instead, the areas in which Congress is authorized to act are strictly limited and defined (“enumerated”).
WE delegated to Congress the following Enumerated Powers over the Country at Large:
Article I, § 8, clauses 1-16 delegate to Congress the powers:
(1) To lay certain taxes;
(2) To pay the debts of the United States;
(3) To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;
(4) To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;
(5) To establish uniform Rules of Naturalization;
(6) To establish uniform Laws on Bankruptcies;
(7) To coin money and regulate the value thereof;
(8) To fix the standard of Weights and Measures;
(9) To provide for the punishment of counterfeiting;
(10) To establish post offices and post roads;
(11) To issue patents and copyrights;
(12) To create courts inferior to the supreme court; and
(13) To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.
Other provisions of Our Constitution delegate to Congress powers over the Country at Large to make laws regarding:
(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
(15) Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); 2
(17) After 1808, to restrict migration (immigration) to these United States (Art. I, §9, cl. 1);
(18) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
(19) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
(20) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
(21) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
(22) Procedures for amendments to The Constitution (Art. V).
The 13th, 14th, 15th, 16th, 19th, 23rd, 24th, & 26th Amendments delegated additional powers to Congress over the Country at Large respecting certain civil rights & certain voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.
So! In a nutshell, the powers WE delegated to Congress over the Country at Large fall into four categories:
♠ International relations, commerce and war;
♠ Control immigration by restricting who may come to these United States, and establish a uniform rule of naturalization of new citizens;
♠ Domestically, to establish a uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery.
♠And in some of the Amendments, to protect certain civil and certain voting rights.
That’s it! All other powers are retained by the States or the People.
Federal Enclaves & Territories:
4. Two provisions of Our Constitution grant to Congress broad legislative powers over these two categories of specifically defined geographical areas:
a) Federal Enclaves: Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in Federalist No. 43 at 2., it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.
b) Territories: Article IV, §3, cl. 2 grants to Congress power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States (as opposed to property belonging to individual states). As these territories became States, Congress’ powers under this Article were terminated.
Congress may not lawfully exercise ANY other powers!
5. Thus, Congress has NO LAWFUL AUTHORITY to bail out financial institutions, businesses, and homeowners who don’t pay their mortgages; NO LAWFUL AUTHORITY to take control of our health care; NO LAWFUL AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO LAWFUL AUTHORITY to take away your IRA’s and other retirement accounts, NO LAWFUL AUTHORITY to take your guns, NO LAWFUL AUTHORITY to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.
Therefore, all laws which Congress has made on such topics are unconstitutional as outside the scope of the legislative powers WE delegated to Congress in OUR Constitution. WE THE PEOPLE did not give such powers to Congress when we ordained and established the Constitution, created the Congress, and listed its 22 enumerated powers over the Country at large. And WE did not delegate those powers to Congress in any of the Amendments.
6. You ask, “How can Congress make all these laws if they are unconstitutional?
Congress gets away with it because WE are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!
Consider Prohibition: Up to 1919, everyone still understood that The Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).
But after the Progressives took over the federal government during the early 1900s, the federal government was transformed from one of limited & enumerated powers only to the Frankensteinian monster it is today. The Progressives are the ones who imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.
The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.
Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government. In other words, the Progressives gave the federal government a blank check to fill out anyway they want.
During the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers delegated to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal/progressive side, and the Court started approving FDR’s programs (5 to 4).
7. Since then, law schools don’t teach the Constitution. Instead, they teach decisions of the FDR-dominated supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!
8. “Well”, you ask, “what about ‘the general welfare clause’? Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “? NO, IT DOES NOT!
First, you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant
“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government” (Webster’s, 1828).
But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when new meanings are substituted for original meanings?
Second, James Madison addresses this precise issue in Federalist No. 41 (last 4 paras): Madison points out that the first paragraph of Art. I, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. So, yes! The powers of Congress really are restricted to those listed herein above.
OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!
9. “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 ‘affects’ ‘interstate commerce’ “? NO, IT DOES NOT! In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Alexander Hamilton & James Madison explain the purpose of the “interstate commerce” clause: It is to prohibit the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling. That’s what it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. 3
10. “Well, then”, you say, “doesn’t the ‘necessary & proper’ clause’ ["elastic clause" or "sweeping clause" ] (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a power to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para). James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.
11. The 10th Amendment states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So! If a power is not delegated by Our Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People. And WE are “The People”!
12. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. James Madison says in Federalist No. 45 (9th para):
“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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” [emphasis mine]
In Federalist No. 39 (14th para):
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.”
and in Federalist No. 14 (8th para):
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…” [emphasis mine]
13. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations. The executive branch and the federal courts approve it. Such is the essence of tyranny. They are “ruling” without our consent, and hence the federal government is now illegitimate. PH
1 “Federal” refers to the form of government: An alliance of States associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas ONLY.
2 Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. But Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade! James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately (Federalist Paper No. 42, 6th para).
3 See Justice Clarence Thomas’ concurring opinion in United States v. Lopez (1995). Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.
Revised July 1, 2009; Sep 8, 2009; Oct. 17, 2010; Jan 3, 2013; Feb. 4, 2013