Commerce Clause for Dum-Dums

The Supreme Court hearing this week is about this one sentence from our Constitution:

From Article I, Section 8: The Powers of Congress:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Most people know this as “the Commerce clause.”  We usually hear the Commerce Clause as “Congress has the power to regulate Commerce”.  I wonder how many people know there’s more to it?

In my view, the debate breaks down as follows.

On one side we have people who incorrectly believe this statement empowers our Congress to force citizens of foreign nations and Indian tribes to buy something.

On the other side are people who correctly understand that this statement empowers our Congress to settle trade disputes between states and with foreign nations and Indian Tribes, on behalf of the U.S.

Some folks may claim to believe that this statement empowers Congress to force only U.S. citizens to buy things.

Such people would need to believe two things that I find far-fetched coming from a group of authors who were concerned about limiting the power of government to protect liberty from government:

  1. There is a significant difference between the meanings of the words “with” and “among” as used here.
  2. “States” or “among the several States” actually means “citizens of the United States”.

I find it far more likely that a group trying to preserve individual liberty from government after the learning the lessons of central and arbitrary power firsthand (granted, I admit, not all founding fathers was pure in this regard), actually meant this to be a rather dry power of Congress to settle trade disputes that arose due to laws passed by state legislatures.

For example, this power would be used to settle a dispute if two state legislatures disagreed on how they were to share a common waterway.

No matter the Supreme Court outcome, I’m not convinced that the authors of the Constitution meant this to be an absolute grant of power for Congress to do anything that sounds good that can remotely be tied to a trade between parties.

If that were the case, there wouldn’t be much need for the rest of the Constitution — including Article III, which vests the judicial power of the U.S. in the Supreme Court.

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A short lesson in the Constitution

Chip Mellor provides a good lesson in the U.S. Constitution in his Forbes opinion article, An Unhealthy Exercise of Power.  Here’s a key excerpt (emphasis mine):

Congress claimed the power to enact PPACA [Obamacare] under the Commerce Clause of the Constitution, which says in its entirety that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The clause was placed in the Constitution to avoid balkanizing the new nation by giving Congress the power to prevent states from erecting trade barriers.

That is essentially how the clause functioned for 150 years. But in 1938 the U.S. Supreme Court decided the case of Wickard v. Filburn, which upheld a New Deal law allowing the secretary of agriculture to establish an annual national acreage allotment for wheat all the way down to individual farmers.

The Court effectively amended the Constitution by turning the Commerce Clause into an affirmative grant of federal authority allowing Congress to regulate any economic activity that has a “substantial effect” on interstate commerce.

I recommend reading the whole article.

For those who think the Supreme Court has the power to amend the Constitution, all I ask is to direct me to where that power derives from and explain to me how that power coexists with the Constitutional Amendment process defined in Article V.   While there is a fine line between interpreting and amending, they are not the same.

What is judicial activism?

What is judicial activism?  Thomas Sowell answers in his recent piece, The “Judicial Activism” Ploy.

“Judicial activism” is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.

In recent years, a brand-new definition of “judicial activism” has been created by the political left, so that they can turn the tables on critics of judicial activism.

The new definition of “judicial activism” defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don’t need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a “judicial activist.”

A judge who lets politicians do whatever they want to, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution.

He then provides a history lesson on how government began diverging from the Constitution about 50 years ago.

The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution. Everything else is left to the states or to the people themselves.

Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals.

That case was a landmark, whose implications reached far beyond farming. If the meaning of “interstate commerce” could be stretched and twisted to cover things that never entered any commerce, then “interstate commerce” became just a magic phrase that could make the Tenth Amendment disappear into thin air.

For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.