Read the Commerce Clause in the Light cast by the other Parts of our Constitution
By Publius Huldah
The parts of our federal Constitution are so interrelated that it is impossible to understand a single clause therein without considering all of the other provisions of our Constitution.
Article I, §8, clause 3, US Constitution, states:
“The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
The original intent of the power to regulate commerce “among the several States” is proved here: Does the “interstate commerce” clause authorize Congress to force us to buy health insurance? That paper proves that the primary purpose of the power is 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.
But recently, some have asserted that since “foreign Nations”, “the several States”, and “the Indian Tribes” are grouped together in the same clause, it necessarily follows that Congress’ power to “regulate commerce” with each of them is identical. And since Congress has broad powers over foreign commerce, they conclude that Congress has those same broad powers over interstate commerce, and may lawfully, for example, ban the movement of physical goods [such as firearms] across state lines.
So let’s look at that clause in the Light cast by the rest of the Constitution.
Three totally different and separate entities
Three entities are listed in the same clause at Art. I, §8, cl. 3; but we may not properly conclude that the extent and nature of the regulation permitted over the three entities is the same. That’s because each entity has a distinctly different status, and is treated accordingly in the Constitution.
The several States
The States are the sovereign entities which created the federal government when they ratified the Constitution. At Art. I, §10, the States agreed that they would not individually exercise the power to make commercial and trade treaties with foreign Nations; but would exercise that power collectively by delegating to the “creature” of the Constitution – the national government – the power to make such Treaties (Art. II, §2, cl. 2).
The States have a high status: They are The Members of the Federation the States created when they ratified our Constitution. The federal government is merely the “creature” of the constitutional compact the States made with each other when they ratified the Constitution, and is completely subject to its terms.
Foreign Nations
Various provisions are relevant to the power the States delegated to Congress respecting commerce with foreign Nations:
◊ Pursuant to its treaty making power granted at Art. II, §2, cl. 2, the United States may make treaties with foreign nations addressing a great many commercial and trade matters, territorial and fishing waters [our ships won’t fish within X miles of your shoreline, etc.], inspections of products, mutual assistance to merchant ships in distress at sea, assistance to each Party’s sick merchant seamen, etc.
◊ Art. I, §8, cl. 1, grants to Congress the power to levy “Duties, Imposts [tariffs on imports] and Excises”. As they did with the infamous Tariff Act of 1828, Congress has the power to shut down imports from foreign Nations by imposing exorbitant tariffs.
◊ Art. I, §8, cl. 10, grants to Congress power to define Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Congress may ban or restrict commerce with foreign nations who fail to rein in their countrymen who are operating pirate ships or violate the Law of Nations.
◊ Art. I, §8, cl. 11, grants to Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. Congress may restrict or ban commerce with warring foreign nations and their allies, and make rules about seizing their cargo (“bounty”).
◊ Imports and exports are unloaded and loaded at dockyards over which the federal government has (pursuant to Art. I, §8, next to last clause) exclusive legislative authority. Congress may make whatever inspection laws need to be made to protect us from contaminated imports – such as agricultural products infested with bugs or diseases, other contaminated products, etc. 1
So Congress’ power to “regulate commerce with foreign Nations” is exercised by means of Treaties the United States makes with foreign Nations, and by means of Laws made by Congress. In the course of exercising this delegated power, the Legislative and Executive Branches have broad authority to restrict or ban commerce with foreign Nations, and determine its parameters.
Congress has no such powers over the Member States.2
Indian Tribes
In Federalist No. 24 (10th & 11th paras), Hamilton speaks of the necessity of keeping small garrisons on our Western frontier which are necessary to protect “against the ravages and depredations of the Indians”; and that some of these posts (garrisons) “will be keys to the trade with the Indian nations.”
In Federalist No. 42 (11th para), Madison speaks of the unsettled status of Indians and says this has been a question of frequent perplexity and contention in the federal councils.
So! It is a clear misconstruction of Art. I, §8, cl. 3 to assert that Congress has the same power to regulate commerce between the Member States that it does to regulate commerce with foreign Nations and the Indian Tribes.
James Madison’s letter of February 13, 1829 to J.C. Cabell
In Madison’s letter of February 13, 1829 to J.C. Cabell, he warns that the claim that the power to regulate commerce with the three entities is identical, is superficially plausible, but actually wrong.
He then says, as to the power to “regulate Commerce among the States”:
“… it is very certain that it grew out of the abuse* of the power by the importing States, in taxing the non-importing; and was intended as a negative & preventive provision agst. injustice among the States themselves; rather than as a power to be used for the positive purposes of the General Govt. in which alone however the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities & incidental means belonging to the power over foreign commerce…” [italics added]
*see the Federalist No 42.”
So Madison warns that we better stick with the original understanding; and not interpret the clause to mean that the federal government has the same broad power over interstate commerce that it has over commerce with the foreign Nations and with the Indian Tribes.
Endnotes:
1 The fed gov’t can’t lawfully ban imports of guns and arms because the 2nd Amendment prohibits the fed gov’t from infringing our right to keep and bear arms. Furthermore, a disarmed citizenry is inconsistent with Congress’ obligation, imposed by Art. I, §8, cls 15 & 16, to provide for the arming and training of the Militia of the several States. To see what it was like when we elected to Congress people who knew and obeyed our Constitution, read the Militia Act of 1792. But until We The People learn our Constitution, we will continue to elect ignoramuses to Congress. We cannot be ignorant and free – and you can’t see that a candidate is ignorant unless you are knowledgeable.
2 Domestically, Congress has the power to impose excise taxes on specific articles in commerce. For a discussion of “imposts”, “excises” and the Whiskey Rebellion, see The Plot to Impose a National Sales Tax or Value Added Tax.
Share this:
COS Project’s “Simulated Convention” Dog and Pony Show and What They Did There
By Publius Huldah
1. Foundational Knowledge
Our Constitution delegates only a handful of powers to the federal government. But 100 years ago, we started electing Progressives (Fabian socialists) to State and federal office. With the enthusiastic approval of the American People, the Progressives set up the socialist regulatory welfare governments (state and federal) we now have. It’s unconstitutional; but Americans didn’t care because they were being taken care of by the governments, and their children were getting “free” public school educations.
So for the past 100 years, the federal and state governments and the American People have ignored our Constitution.
Now that our socialist system is collapsing, along comes the “Convention of States” Project (COSP), blames all our problems on the federal government, and claims we can fix the federal government’s violations of our Constitution by amending the Constitution. 1
And they say amendments which will “rein in the abuse of power by the federal government” when it “violate[s] its constitutional limitations”, 2 can be obtained only at a convention called by Congress pursuant to Article V of our Constitution.
Article V provides that if two thirds of the States apply for it, Congress shall call a convention for proposing amendments to the Constitution. 3 However, Delegates would have the right, as recognized in the 2nd paragraph of our Declaration of Independence, to throw off the Constitution we have and write a new Constitution which creates a new government. This has happened before!
Our first Constitution was the Articles of Confederation. It had defects, so on February 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation”. But instead of proposing amendments, the Delegates wrote a new Constitution, with an easier mode of ratification, 4 which created a new government. In Federalist No. 40 (15th para), James Madison invoked the Delegates’ right to abolish our form of government, as recognized in the Declaration of Independence, to justify ignoring their instructions and drafting a new Constitution which created a new government.
So! Ever since the federal convention of 1787, it has been known that any convention called to address our Constitution under Article V provides the opportunity to impose a new Constitution. 5 That’s why the enemies of our Constitution periodically push for an Article V convention. 6
In response to the current push, constitutionalists are warning Americans that if Congress calls an Article V convention, a new constitution with a new mode of ratification is likely to be imposed – probably a new constitution which moves us into the North American Union.
2. COSP’s “simulated” Article V convention
So during September 2016, COSP held an “invitation only” “simulated convention” in Williamsburg, Virginia attended by State Legislators handpicked by COSP, 7 to show us that Delegates to a real Article V convention called by Congress will do nothing more than propose amendments.
And lo! At the “simulated convention”, all the handpicked invitees did was propose six amendments to our Constitution – they didn’t “run away” and propose a new Constitution with a new mode of ratification!
COSP would like us to believe that their “simulated convention” proves that a real Article V convention called by Congress also won’t run away when, in fact, it proves nothing except that handpicked COSP invitees fall in line with the COSP agenda.
Now let’s look at the proposed amendments: COSP posted them HERE; an archived copy is HERE.
3. COSP’s six amendments
Like Newspeak in George Orwell’s “1984”, the amendments would do the opposite of what COSP claims.
“Fiscal Restraints Proposal 1”:
“SECTION 1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress, and only for a period not to exceed one year.
SECTION 2. No state or any subdivision thereof shall be compelled or coerced by Congress or the President to appropriate money.
* * *”
So! Congress can’t increase the debt unless they decide to increase the debt. Wow. This is “fiscal restraints”?
If you read through the Constitution and highlight the powers delegated to the federal government, you will get a list of the objects on which Congress is authorized to spend money.
The reason we have a huge debt is because for 100 years, Congress has been spending on objects which aren’t on the list of delegated powers. The States go along with it because they get federal funds for implementing unconstitutional federal programs in their States. 31.9% of the States’ annual revenues is from federal funds. All this federal money is borrowed and added to the public debt!
To say that State Legislators display hypocrisy when they decry “out of control federal spending” when they have their hand out for all the federal money they can get, is an understatement. The amendment authorizes such spending to continue for as long as Congress continues to approve increases in the debt! The amendment legalizes – makes constitutional – all such spending and debt increases!
Section 2 gives us nothing. Our existing Constitution doesn’t permit the federal government to require States or local governments to spend money.
“Federal Legislative & Executive Jurisdiction Proposal 1”:
“SECTION 1. The power of Congress to regulate commerce among the several states shall be limited to the regulation of the sale, shipment, transportation, or other movement of goods, articles or persons. Congress may not regulate activity solely because it affects commerce among the several states. [boldface added]
SECTION 2. The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States. [boldface added]
SECTION 3. The Legislatures of the States shall have standing to file any claim alleging violation of this article. Nothing in this article shall be construed to limit standing that may otherwise exist for a person.
* * *”
Section 1: The original intent of the interstate commerce clause (Art. I, §3) is to prohibit the States from imposing tolls & tariffs on merchandize as it is transported through the States for purposes of buying & selling; and to permit the federal government to impose duties on imports & exports, both inland & abroad. 8
With Roosevelt’s “New Deal”, the federal government began to pervert the original intent so as to exert power over whatever they wanted to regulate.
The amendment legalizes the perversions! It delegates to the federal government powers it has already usurped to regulate the sale, shipment, transportation, or other movement of goods and articles.
Furthermore: the amendment delegates to the federal government a sweeping new power over the movement or transportation of persons across state lines! It would, e.g., authorize the federal government to prohibit use of privately owned vehicles to cross state lines, and to require prior written permission to cross state lines. I saw in communist East Europe & the Soviet Union a system where governments control movement of persons. Will “Papers, please” be heard at checkpoints in America? This malignant amendment would be constitutional authority to impose such a system here. 9
Section 2: The federal government has no existing constitutional authority to regulate intra state commerce, so the first clause of this section adds nothing our Constitution doesn’t already prohibit.
But the second clause delegates to the federal government another significant new power over persons: it comes verbatim from Randy Barnett’s so-called “bill of federalism”: 10
“…Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
Why does Barnett, who attended the “simulated convention” as “Committee Advisor”, want the federal government to have this new power? What’s an “act of war against the United States” – doing what the Bundys and their supporters did? The amendment delegates to Congress the power to define “acts of war against the United States” – and to re-define it from time to time – to encompass whatever they want!
We need to understand the implications of delegating such power to Congress. As with “treason” under the Tudors in England, anyone can be accused of “acts of war against the United States”. Does Randy Barnett, law professor, understand the implications? James Madison understood them and thus said that “treason” must be defined in the Constitution; 11 obviously, no one of Madison’s caliber was at the “simulated convention”.
Section 3: Our Framers didn’t advise the States to file lawsuits against the federal government when it violates the Constitution! Our Framers told the States to nullify such violations. 12
“Federal Term Limits & Judicial Jurisdiction Proposal 1”:
“No person shall be elected to more than six full terms in the House of Representatives. No person shall be elected to more than two full terms in the Senate. These limits shall include the time served prior to the enactment of this Article.”
This amendment is a feel-good palliative which caters to Americans’ pervasive desire for a quick “fix” which permits them to avoid dealing with the real causes of their problems. See Term Limits: A Palliative not a Cure.
“Federal Legislative & Executive Jurisdiction Proposal 2”:
“SECTION 1. The Legislatures of the States shall have authority to abrogate any provision of federal law issued by the Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form. [boldface added]
SECTION 2. Such abrogation shall be effective when the Legislatures of three-fifths of the States approve a resolution declaring the same provision or provisions of federal law to be abrogated. This abrogation authority may also be applied to provisions of federal law existing at the time this amendment is ratified.
* * *”
Section 1: Article I, §1, US Constitution, provides that all legislative powers granted by the Constitution shall be vested in Congress. Only Congress may make laws [and laws are restricted to the powers granted in the Constitution].
Accordingly, executive orders and federal agency rules and orders are not “law”.
The amendment would supersede Art. I, §1. It would elevate to the status of “federal law” every order or regulation burped out by bureaucrats in the executive branch; every executive order signed by every President; and every order barked out by jack-booted thugs working for federal agencies. And unless three fifths of States agree that you don’t have to obey – you must obey or bear the consequences of violating what would be – thanks to this amendment – “federal law”.
Section 2: James Madison, Father of our Constitution, showed how individual States or several States could carry out resistance to the federal government’s unconstitutional encroachments. But the amendment would require 30 States to agree before any one State or person could defend itself!
“Fiscal Restraints Proposal 2”:
“SECTION 1. Congress shall not impose taxes or other exactions upon incomes, gifts, or estates.
SECTION 2. Congress shall not impose or increase any tax, duty, impost or excise without the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately present such to the President. [boldface added]
SECTION 3. This Article shall be effective five years from the date of its ratification, at which time the Sixteenth Article of amendment is repealed.”
This amendment doesn’t impose “fiscal restraints” – it authorizes Congress to impose new and different taxes on us!
The words in boldface authorize Congress to impose “any tax” if three fifths of both Houses agree. “Any tax” includes a national sales tax and a national value added tax (VAT). Statists love the VAT because it raises a “gusher of revenue for spendthrift governments”. This is what will replace the income, gift, and estate tax.
“Federal Legislative & Executive Jurisdiction Proposal 3”:
“Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed or existing federal administrative regulation, in whole or in part, it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation. Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated. No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress. Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution.”
As shown in The “Regulation Freedom” Amendment and Daniel Webster, rulemaking by federal agencies is unconstitutional as in violation of Art. I, §1 of our Constitution.
The proposed amendment would supersede Art. I, §1 and legalize such rulemaking! And the existing Code of Federal Regulations and the rulemaking process itself – which now violate the Constitution – would be made constitutional!
The solution to the burden created by unconstitutional federal agencies is to do away with the agencies! Downsize the federal government to its enumerated powers!
4. Conclusion
The “simulated convention” was a dog and pony show put on to produce amendments to con us into believing that a real Article V convention called by Congress won’t “run away”.
But it’s impossible to fix federal usurpations of non-delegated powers with amendments, because amendments can’t take away powers the Constitution didn’t delegate in the first place. Thus, the amendments the hand-picked attendees approved legalize powers already usurped or delegate sweeping new powers to the federal government over States and individual persons!
Statecraft is serious business which requires systematic study to master. The “simulated convention” shows we live in a time of constitutional illiteracy where people of good intent can be misled by persons of “insidious views”. Heed the words of Daniel Webster in his 4th of July Oration, 1802:
“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.”
Endnotes:
1 If your spouse commits adultery, will your marriage be saved if you amend the vows to permit adultery? When People violate the Ten Commandments, will morality be restored if we amend the Ten Commandments to permit sin?
2 Michael Farris’ words in “Answering the John Birch Society Questions about Article V” or HERE.
3 None of the Delegates to the convention of 1787 said the purpose of amendments is to rein in the fed. gov’t when it usurps power. They said the purpose is to fix defects in the Constitution. See The George Mason Fabrication at subheading 4.
4 Article XIII of the Articles of Confederation (AOC) required Amendments to the AOC to be ratified by the Continental Congress and all of the then 13 States. But Article VII of the new Constitution (the one we now have) provided that it would be ratified by 9 States.
5 The enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention! Our present Constitution was ratified by the 9th State on June 21, 1788. In Federalist No. 85 (mid-August 1788), Hamilton addressed the arguments of the anti-federalists who were agitating for another convention in order to get rid of our new Constitution.
On Oct. 27, 1788, anti-federalist Patrick Henry introduced into the Virginia Assembly a Resolution asking Congress to call an Art. V convention. In Madison’s letter to Randolph of Nov 2, 1788 (pages 294-297), he speaks of Henry’s “enmity” “agst [against] the whole system” [the new Constitution]; and “the destruction of the whole system I take to be still the secret wish of his heart, and the real object of his pursuit.”
6 New Constitutions are already prepared or being drafted: e.g., the Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). Globalists [e.g., the Council on Foreign Relations] who want to move us into the North American Union (NAU) need a new Constitution to transform us from a sovereign nation to a member state in the NAU.
7 COSP’s page is archived HERE. See “who attended the simulation” in right column. [Archived list of attendees is HERE or HERE.]
8 Proof of the original intent of the interstate commerce clause & how it was abused is HERE.
9 Yet, Legislators from 44 of the States at the “simulated convention” approved this!
10 See Barnett’s Amendment 2 – Limits of Commerce Power”. It’s archived HERE.
11 “Treason” is defined at Art. III, §3. In Federalist No. 43 (at 3.) Madison warns that the definition must be locked into the Constitution. Otherwise, malignant people fabricate definitions as needed in order to condemn their enemies.
Compare Art. I, §8, cl. 10 which delegates to Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”. In Federalist No. 42 (1st & 4th paras), Madison points out that this class of powers is among those which “regulate the intercourse with foreign nations” and so must be handled by the general [fed.] gov’t. And since everyone’s definition of the terms is different, the fed gov’t should define them. This class of powers wouldn’t affect private Citizens. For more on the limited criminal jurisdiction of the fed gov’t over private Citizens, see What Criminal Laws are Congress Authorized To Make?
12 See Nullification made Easy. And remember: State officials are required by the Oath at Art. VI to “support” the federal Constitution – not to obey the federal government!
Share this:
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:
“…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
Share this:
PUBLIUS HULDAH
Publius-Huldah's Blog 