Posted on 06/29/2011 2:33:14 PM PDT by Jacquerie
On August 18th 1787, at the Federal Convention, an Enumerated Power was motioned for addition to our Constitution. That was,
“To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures.”
Say what? Oh yes. Any Freeper knows this did not make its way into Article I Section 8. Instead, the delegates approved the familiar Commerce Clause, “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Direct government involvement in “Promotion of commerce,” was rejected for regulation of commerce. Big difference, eh?
Well, apparently not to FDR’s court some seventy years ago. Under the quiet commerce clause they and subsequent courts blew up limited government. By this, our blackrobes granted Congressional power to regulate any and all economic activity. Statist government could dictate crop subsidies, workplace employment standards, . . . and now, our very lives.
The discarded clause would have opened the door into every corner of our lives, certainly to the extent that Congress could have regulated anything that affected interstate commerce as cited in the laughable and disastrous Wickard v. Filburn decision.
The rejected power would have made Wickard v. Filburn not only unnecessary, but not even thought of, for the national government would have been long involved in every aspect of our lives. The fact of its rejection IMO is further proof that our Framers specifically rejected what FDR’s Supreme Court found lurking somewhere in a crease of our Constitution in 1942.
Wickard supplied that which the Framers discarded but the Left demanded. It was their Philosopher’s Stone. Take a Constitution of limited powers and render it into a Marxist tool of oppression. Unabashedly Leftist contortions of the Commerce clause collectively since the 1930s fail to pass the giggle test.
I am certain our Constitution ultimately means what it says and not what the judicial blackrobes say it means. By like construction, the blackrobes cannot legitimately force on us an enumerated power specifically rejected by our Framers. Wickard and all subsequent rot leading to the final elimination of liberty under the Obamacare Enabling Act have no basis whatsoever in our beloved Constitution. But you already knew that.
Just remember, Wickard and Obamacare were rejected in 1787.
Many T’anks for this posting—and for reminding me of it.
The more I learn of our history the more I know I don’t know nuthin.It was easier when I was a teenager and knew everything.
1
Veto of federal public works bill
March 3, 1817
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
2
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient prece-dents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
James Madison, President of the United States
Thanks for the Ping. KC <In lurk mode.
Is your source the Papers of James Madison or his Writings, or . . . ?
Thanks for the ping. To read Madison’s words and follow their inexorable logic is at once wonderful and painful. It is wonderful at the remove of two centuries to be reminded of the brilliance of our Constitution and that of the men who help craft it. It is equally painful to consider how far we, in our time have fallen from the pinnacle of reason that first impelled such people to risk all they had for a vision of rare self-governance.
...it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html
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Here is Madison explaining the power to regulate commerce with foreign nations:
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces18.html
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Taken together, the above two letters clearly lay out the purpose of each power and how they are different.
You are a gem, sir. Now we need this in broad and general circulation as it is not taught at all across our great land.
Highest Regards,
TenTen
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
It is patently obvious that Rehnquist is wrong, utterly wrong in his analysis and conflicted in his conclusions.
If "Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause" is true then what follows?:
1. The Court expanded the defined authority of Congress.
2. What was the previously defined authority of Congress as regards the Commerce Clause? The Constitution itself which prior jurisprudence simply and strictly followed.
3. That document itself contains the only method of expanding the defined authority of Congress or any branch of the United States Government - Constitutional Amendment.
4. The SCOTUS has no authority to expand the Constitution per that selfsame American Contract.
Taking the second part of Rehnquists statement we find that "earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce". What was the means of this 'artificial' constraint? By what source was Congress constrained?
The legal definition of 'artificial' is
1 a : made by humans —compare NATURAL b : caused or produced by a human and esp. social or political agency artificial price advantage>
2 : arising through operation of law —ar·ti·fi·cial·ly adverb
Definition 1. is a truism for all human laws, but if our Constitution is God-made clearly false and if our Constitution is based on Natural Law clearly false again. Definition 2. makes a joke of Rehnquist's statement. So Rehnquist doesn't mean artificial in the legal sense, but in the colloquial sense of 'not genuine; pretended; or assumed'.
If that is the case, then Rehnquist's statement is a direct attack against the Constitution itself. It cannot be anything else as prior jurisprudence held to the limited government interpretation of the Constitution itself. Rehnquist's statement is a bold admission that the expansion of the Commerce Clause by the SCOTUS is a repudiation of the Constitution of the United States of America.
Rehnquist assumes that a proper interpretation of Congressional authority, had it been correctly defined in the past, would have allowed for an expansive control by the legislative branch over a broad swath of economic activity "among the several States". Although he does not say so in the text you've quoted, he appears to rely not only on the specific, enumerated powers granted under Article I, Section 8, Clause 3, but also upon the "Necessary and Proper Clause" that follows later in Article 1 Section 8.
As a strict constructionist, I (and many others) reject both the preliminary reading of the Commerce Clause as a broad grant of power and the elastic use of the later clause to permit anything other than the execution of power already granted by the Constitution.
In any event, I do not believe that Rehnquist intended to imply a Judicial power to expand the authority of the legislative branch by fiat, but because he believed that Congress always possessed the authority finally "recognized" in Jones, Darby and Wickard, et al.
I believe he was profoundly mistaken, and as such, Alexander Hamilton's faith that the Necessary and Proper Clause would be constrained by the clear language of the Constitution in its grant of enumerated powers (see Federalist #44) appears to me to have been tragically misplaced.
Instead, the innocuous commerce clause has been turned on its head and abused as a tool to aggrandize federal power at the expense of the States, in direct violation of the Constitution. If this simple clause can be so construed as to deny powers that legitimately reside with the States, well, there is no philosphical limit to federal powers.
In the Obamacare lawsuit, two out of three appellate judges last week voted to enslave a once free people.
T’anks. And I think you are correct in your assessment.But I was never trained in the metaphysical refinements and tests of logical skill so many others enjoy. Someone once said the Law is like an onion in its many layers. And the Court is like a monkey that will open up that onion as as it is allowed —
or until another distraction causes it to discard the onion for other pursuits. When I read your post— Justice Rhenquist -and educated and a fine man from what I have read reminded me of that illustration IF the constitution is seen as an artificial restraint then does not say that which we believed true is nothing but an apparation/haint.
Take a look at this thread. I think you’ll find this information worthwhile to the homeschooling list.
It’s something every homeschool child and parent should know. Then teach two others.
I will not pay for Obamacare or any other forced insurance for healthcare, and I won’t go to jail for it either, I’m too old and I have had a kinda full life.
I understand. You won’t be alone. A country founded on the basis of Natural Rights has a government that oppresses its people at every turn.
ping
Excellent find.
Thanks. How did you come across this two month old posting?
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