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 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…”
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!
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.