Posted on 11/04/2003 10:08:00 PM PST by JohnHuang2
Several weeks ago, under the title "Is It Permissible?" I discussed how Congress systematically abuses the Constitution's "welfare clause" to control our lives in ways that would have been an abomination to the Framers. Quite a few readers pointed to my omission of Congress' companion tool to circumvent both the letter and spirit of the Constitution, namely the "Commerce Clause."
The Constitution's Article I, Section 8, paragraph 3 gives Congress authority "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." During the war, the 13 colonies formed a union under the Articles of Confederation (1778) whereby "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The Treaty of Paris (1783) that ended the war between the colonies and Great Britain recognized 13 sovereign nations.
A key failing of the Articles of Confederation was the propensity of states to erect protectionist trade barriers. When the Framers met in Philadelphia in 1787 and wrote the constitution that governs us today, they addressed that failure through the commerce and the privileges and immunities clauses that created a national free-trade zone.
Thus, the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn't intend for the Commerce Clause to govern so much of our lives.
Indeed, as James Madison, the father of our Constitution, explained, "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."
For most of our history, the Courts foiled congressional attempts to use the "Commerce Clause" to sabotage the clear meaning of the Constitution, particularly the Ninth and 10th Amendments. The courts began caving in to congressional tyranny during the 1930s. That tyranny was sealed in 1942, by a little known U.S. Supreme ruling in Wickard vs. Filburn.
Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat -- therefore, he was indirectly affecting interstate commerce.
If there's any good news, it's the tiny step the U.S. Supreme Court took in its in U.S. Vs. Lopez (1995) ruling. In 1990, Congress passed the Gun-Free School Zones Act, citing its powers under the "Commerce Clause." Namely, the possession of a firearm in a local school zone substantially affected interstate commerce.
Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.
While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn't, saying, "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."
In other words, the hours children spend studying, the amount of rest they get and what they eat have something to do with learning. Congress could easily manufacture a case for the regulation of these activities based on its perverted interpretation of the "Commerce Clause."
While the Lopez ruling is a tiny step in the right direction, there's much more to be done. Constitution-respecting Americans should demand the impeachment of congressmen and other elected officials who ignore their oaths of office to uphold and defend the Constitution.
So? Feinstein can intoduce anything she likes. She is a Senator afterall, but I digress.
We have to focus on your constant doom and gloom, afterall.
It seems this thread is all about you and your knee jerk fears.
Whatever, Ms. Cleo. That's your opinion as an American to have.
Notice that I didn't say that your opinion sucks.
And so, are the democrats running Tom Delay?
A simple yes or no will be suffice.
I think that if the courts were to take it upon themselves to hold that "the commonly understood meaning of 'regulate' at the time of the Constitution was written was 'to keep in good working order,'" nothing would change. I can't think of a single example in which the Congress passed a law under the commerce clause and didn't say that it was doing so in order to promote the interests of interstate commerce. How can a court legitimately question such Congressional determinations? Should courts hold their own hearings on whether, for example, child labor laws are on the whole good or bad for the long run interests of interstate commerce? Should they convene juries to help them decide these issues? Where does the Constitution say anything about courts performing that function? Shouldn't the fact that the Constitution doesn't expressly grant the judiciary any power to regulate the Congress be given some consideration by a court that wishes to become more activist in this area?
People who blame the courts for what they see as an unconstitutionally large federal government are totally missing the boat. If we want a smaller federal government, the only way to get that is to elect representatives to Congress who share our view. The courts can't legitimately perform that task for us.
Keep on posting dude, with each one of your posts you make my point.
And how about you?
You do believe that the Assault Weapons Ban should continue, don't you?
A simple yes or no will be suffice.
What is so "imcomplete" about the question of "are the democrats running Tom Delay".
Seems pretty cut and dry to me.
Oh that's right, earlier on in this thread you said my opinion "sucks".
How dare I say speak up towards the great and all mighty Phil.
By rejecting the "substantial effects" doctrine, and limiting Congress to "regulating" actual interstate commerce - ie real goods and services actually involved in commerce that crosses state lines.
Like this one did too? Big stretch on this thread too.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.