A Progressive Perverts the Commerce Clause; but O’Reilly Gets it Right!

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 (9^th 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 (4^th 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 20^th 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 (9^th 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 (3^rd 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 (8^th 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

End Note:

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

Merchant Seamen In 1798, Health Care On Federal Enclaves, And Really Silly Journalists.

By Publius Huldah.

A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”,  Washington Post writer Greg Sargent, and Georgetown University history professor Adam Rothman.

In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.

So!  Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized medicine”; and so the “political right-wing” should stop “pretending” that our Founding Fathers would oppose obamacare.

Greg Sargent chimed in to the same effect, and quoted history professor Adam Rothman for the idiotic propositions that

“…the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care … that in itself is pretty remarkable and a strong refutation of the basic principles that some Tea Party types offer … This defies a lot of stereotypes about limited government in the early republic.”

But Unger’s, Sargent’s and Rothman’s statements are so transparently ignorant they can be disposed of in a few paragraphs:

Congress’ Three Categories of Legislative Powers

One:  Congress has only limited legislative powers over the Country at large. These legislative powers are restricted to war, international commerce & relations; and domestically, the creation of an uniform commercial system:  weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. Various Amendments granted to Congress certain powers over civil rights. These enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States and The People in The States.  In all other matters [except those listed at Art. I, Sec. 10] the States and The People retained supremacy, independence, and sovereignty.

Two:  Article I, Sec. 8, clause 17, U.S. Constitution, says:

“The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislatures of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  [boldface mine]

“Exclusive Legislation in all Cases whatsoever” over “dock-Yards”. Do you see?  It is this clause which grants to Congress authority to establish marine hospitals on dock-Yards belonging to the United States.  Congress has a general legislative authority over the federal enclaves, such as dock-Yards. That legislative authority is limited only by the Bill of Rights.

In Federalist Paper No. 43 at 2., James Madison explains in three short paragraphs [read them!] why the federal government must have “complete authority” over the federal enclaves listed at Art. I, Sec. 8, cl.17.

Alexander Hamilton in Federalist No. 32 (2^nd para), comments also on the grant of “EXCLUSIVE LEGISLATION” over the federal enclaves [capitals are Hamilton’s] in “The last clause but one in the eighth section of the first article…”

Do you see?  That grant of “exclusive legislation” is restricted to the federal enclaves.

Three:  Article IV, Sec. 3, cl. 2,  grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”  Madison shows in Federalist No. 43 at 5. that “the Territory” referred primarily to the Western Territory before it was formed into States.

That’s it, Folks!

So!  While Rick Unger crowed in his article,

“While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.”

It’s not difficult at all!  All one has to do is read Art. I, Sec. 8, cl. 17, which permits Congress to make such a law for American ships using the dock-Yards belonging to the United States. That’s what “exclusive Legislation in all Cases whatsoever” means.  Do you see?

Congress has no such legislative authority for the Country at large. There, it is limited and   enumerated. PH

April 5, 2012

Postscript Added April 7, 2012:

Attorney Hal Rounds (Memphis, TN), gave me the following fascinating information:

“My GGrandfather was a U.S. Consul, his last post was in Nova Scotia. Among his records is a series of reports regarding how he arranged for the isolation, shelter, and nursing in Nova Scotia of an American sailor ill with smallpox. The ship left, after disembarking the now useless – and contagious – victim. This care necessitated local expenses and hiring. I do not know what, if any, of the cost was borne by the ship owner, and what portion was by the U.S. Government. (The sailor survived, and eventually was sent on his way.)

But the duties of a nation extend to some services to its citizens abroad. These are, of course, governed by treaties and customary traditions. So, a law requiring a ship operator to insure his crew fits in with the federal authority to regulate “commerce with foreign nations” and its jurisdiction over U.S. flag shipping outside, or traveling between, state jurisdictions. Because ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.

The requirement in 1798 addressed these concerns. It was not a requirement to subsidize health care for the citizenry at large, but to indemnify the federal government against claims that would arise in the course of the U.S. being a nation engaged in international trade, and, under the law of nations, responsible for the burdens its commerce threw upon foreigners; and to accommodate the demands the foreign vessels would dump on us.”

THANK YOU, Hal!  I showed how Congress had the authority to make the law; you explained why Congress needed to make the law, and provided additional constitutional authority for Congress to make the law.  PH