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“Because I Said So”
“Government's view of the economy could be summed up
in a few short phrases: If it moves, tax it. If it keeps moving, regulate
it. And if it stops moving, subsidize it.” - Ronald Reagan, at the
White House Conference on Small Business, August 15, 1986Sean P. Healy, March 11, 2003 Democrats seem to believe that the government can do whatever it wants, as long as it has good intentions. But if they proposed a constitutional amendment that said so, most people would think they’d lost their minds. In reality, the Supreme Court has amended the Constitution to say just that. The Court has wiped out almost all of the carefully
constructed constitutional limits to the power of the federal government,
leaving us with an all-powerful Congress. This article will discuss the
Commerce Clause. This sounds like a dry subject, but keep in mind that the
Commerce Clause is the pretext now used by the federal government to doanything
it wants to. If you aren’t hopping mad by the end of this article,
then literally nothing the government does will make you mad. The Tenth Amendment made this view the law of the
land, stating: “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.” This means that the federal
government has no power to do anything unless the Constitution
specifically authorizes it. This was one of the key provisions intended to
check the power of the federal government. One of the specific powers granted to Congress is the power “To regulate commerce . . . among the several states. . .” At the time the Constitution was ratified, “commerce among the several states” meant a person in one state selling something to a person in another state. As we will see, those words mean something different now. The Constitution delegates a number of other specific powers to the federal government, including the power to make bankruptcy laws, coin money, create a post office, declare war, and to raise and support armies and a navy. There is no general grant of power: That general “police power” is reserved to the states under the Tenth Amendment. Until the 1930s, Congress rarely tested the limits of the Commerce Clause. Consequently the Supreme Court’s Commerce Clause decisions mainly involved striking down acts of individual states, when they infringed on the free flow of interstate commerce. The Court consistently drew strict distinctions between “commerce” and other business activities such as manufacture, mining, farming, and production, stating that the latter were not subject to Congress’ power. For example, in In U.S. v. E.C. Knight Co., 156 U.S. 1 (1895), the Court commented: “Commerce succeeds to manufacture, and is not part of it.” A.L.A. Schlechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) was the challenge to the constitutionality of NIRA. The defendants were in the business of slaughtering chickens and selling them to retailers. They were indicted for violating a code which had been adopted by the President under the authority of NIRA. The Court deeming the law unconstitutional because items “the flow in interstate commerce had ceased.” The Court explained: “Production, whether by way of manufacture, mining, farming or any other activity, is not commerce and is not subject to regulation under the commerce clause.” The Court in Carter v. Carter Coal Co., 298 U.S. 238 (1936) made a similar distinction between production and trade, holding that only the latter qualifies as commerce. The Court refused to allow Congress to regulate
these other activities, ruling that they did not constitute “commerce”
and therefore were beyond Congress’ power. The Court also drew a sharp
line between “intrastate commerce,” which occurs within a single
state, and “interstate commerce,” which crosses state lines and
therefore may be regulated by Congress under the Commerce Clause. To avoid
confusion between those very similar terms, I will refer to intrastate
commerce as “in-state commerce.” This reversed the narrow majority, and as a result the Court began rubber-stamping virtually every law passed by Congress. The case which signaled the change was West Coast Hotel v. Parrish, 300 U.S. 379 (1937), in which the Court upheld a minimum wage law just like the one the Court had overturned less than ten months ago in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). Justice Roberts changed his vote, changing the outcome of the Parrish case. He claimed that he saw valid distinctions between the two cases, but critics called his sudden reversal "the switch in time that saved nine.” This switch signified that the Court had wholly
abdicated its role in reining in Congress. The Court granted its approval
to virtually everything Congress did for almost sixty years. Here are some
of the most significant decisions:
If there is any question about what the Supreme Court meant, this statement in U.S. v. Wrightwood Dairy Co resolved them: “The commerce power is not confined in its exercise to the regulation of commerce among the States.” The Court made a virtually identical statement in U.S. v. Darby. Remember, the Constitution allows Congress to regulate “commerce among the several states.” The Supreme Court says that authorizes Congress to regulate things which are not interstate and which are not commerce. Only a lawyer could dream up such a thing. Congress has responded by passing laws regulating drugs, child labor, the minimum wage, discrimination, sexual harassment, the environment, endangered species, criminal law, civil rights, and many, many other subjects. Carjacking is now a federal crime. Rape and arson can be federal crimes, and so can fleeing the state to avoid paying child support. You face up to ten years in federal prison for simply possessing a gun while under a routine order of a divorce court. The Army Corps of Engineers even tried to define “navigable waters” to include any water that provides habitat for migratory birds, bringing mud puddles under federal control. The rationale was that birds affect interstate commerce. I guess if a bird flies over it, the government can regulate it. The debate is not whether these are good laws. The only question is whether Congress is acting within the limits of the Constitution, or simply doing whatever it wants because there is no one there to stop it. U.S. v. Lopez, 514 U.S. 549 (1995) was the first bright light in seventy years. In 1990 Congress passed a law that prohibited anyone from possessing a gun within one thousand feet of a public or private school. Congress justified this gun control law because at some time in the past the gun traveled in interstate commerce. Somehow regulating something that decades ago was a part of interstate commerce is the same thing as regulating interstate commerce. The government argued in favor of the law, relying on Wickard and similar cases which allowed Congress to regulate anything that has a substantial effect on interstate commerce. The Supreme Court found the law unconstitutional,
holding that it exceeded Congress’ power under the Commerce Clause. The
Court said, "Under the theories that the Government presents in
support of § 922(q), it is difficult to perceive any limitation on
federal power, even in areas such as criminal law enforcement or education
where States historically have been sovereign. Thus, if we were to accept
the Government's arguments, we are hard pressed to posit any activity by
an individual that Congress is without power to regulate." Lopez
was the first case in 70 years to invalidate a federal law made under the
Commerce Clause. Unfortunately the federal Courts of Appeals do not seem
to have gotten the message. Virtually all of the lower courts that have
applied the ruling in Lopez have said in essence that all Congress
has to do is mention interstate commerce in the statute and the inquiry
ends there. The Court explained: "We accordingly reject the
argument that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct's aggregate effect on interstate
commerce. . . Indeed, we can think of no better example of the police
power, which the Founders denied the National Government and
reposed in the States, than the suppression of violent crime and
vindication of its victims." In Lopez and Morrison the
Court recognized that the Commerce Clause cannot possibly allow Congress
to regulate anything that affects interstate commerce, or there
would be nothing on the face of the planet that would be beyond
Congress’ power. The Commerce Clause must be in the Constitution
for a reason. If the Founders felt Congress could do anything it wants,
they could simply have said so. Obviously, the Members of Congress and the Justices
on the Supreme Court are not stupid people. They have to know the
Court’s limitless definition of “interstate commerce” is nothing but
a transparent lie for the sole purpose of granting more power to the
federal government. The Founders intended the Supreme Court to be your
last line of defense against tyranny. What do you think James Madison and
the other Founding Fathers would do if he learned that a vast, omnipotent
federal government had been created based on a patently false
interpretation of single obscure clause of the Constitution? I guess we
know how the Founders would react to tyranny. We’ve been down that road
once. |
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