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.
I am.
You've mentioned they exist, but aren't very clear about what they are. What is preventing the USSC from rejecting the substantial effects doctrine? If the USSC and the Constitution cannot limit the power of the federal government, why do we have them? What "specific rights and limitations found elsewhere" were the basis for overturning the VAWA?
The massive dosages of illict drugs you did back then must have made you forget your were a doper. Now you are just a criminal hypocrite.
Huh for someone, who doesn't know about drugs, you sure do know alot.
I guess you take the parallel Clintonian route in spouting "I never took that drug, LSD".
The music was a hell of a lot better then.
Yep, and have done all manner of illegal ones as well. Criminals like you should crawl away.
Ta Ta to you also Pro, and beware of the window pane they will be pushing at you at the rave you attend tonight.
Oh don't forget your pacifier.
Ta Ta to you also Pro, and beware of the window pane they will be pushing at you at the rave you attend tonight.
Oh don't forget your pacifier.
You have to give the poor little thing credit. At least he understands that my drugs of choice as legal. Must really tear him up to know that...oh, that's right, he doesn't use illegal drugs nor would he ever even if they were legal.
Either that or the wife and I are heading for the Museum of Flight to watch the Concord arrive. They're going to be serving coffee...
Nonsense---it was clear as recently as 1918. Hammer v. Dagenhart, 247 U.S. 251: "Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles, intended for interstate commerce, is a matter of local regulation. 'When the commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state.' Mr. Justice Jackson in Re Greene (C. C.) 52 Fed. 113. This principle has been recognized often in this court. Coe v. Errol, 116 U.S. 517 , 6 Sup. Ct. 475; Bacon v. Illinois, 227 U.S. 504 , 33 Sup. Ct. 299, and cases cited. If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the states, a result certainly not contemplated by the framers of the Constitution when they vested in Congress the authority to regulate commerce among the States. Kidd v. Pearson, 128 U.S. 1, 21 , 9 S. Sup. Ct. 6."
Gotta go also, but tomorrow there will be more comments after we have left commenting about us "JBT's".
Take it easy.
Institutional Weakness No. One: The Constitution does not expressly provide the Supreme Court with any power or authority to substitute its judgement for that of Congress. Please keep that limitation in mind when you are encouraging the Supreme Court to more closely scrutinize the constitutional decisions that are made by the Congress. Marbury v. Madison was seen by many as a judicial power grab at the time and while the Court's new power has gained general acceptance over time, the Court has usually tried to be judicious in exercising it in part because it doesn't have very solid roots. Why should the Court assume that it is somehow inherently more capable than the Congress at interpreting the power of Congress to regulate commerce among the several states?
Institutional Weakness No. Two: The Supreme Court is not elected by the people and is not supposed to be a political branch of government. The members have no political constituency to serve as a basis for support. The Court is, in the last analysis, completely answerable to the political branches (budget, jurisdiction, impeachment power, court-packing). This institutional weakness provides a check on just how ambititious the Court can be in telling the political branches to pound sand.
Institutional Weakness No. Three: Ordinarily, when the Congress passes legislation, it does so after extensive hearings at which witnesses are heard and materials submitted. Proceedings like that result in legislative findings that because of their breadth are often very unlike the kinds of questions of fact that courts are used to deciding. The Supreme Court is not accustomed to holding lengthy hearings with witnesses testifying as to the impact that a piece of legislation might have on interstate commerce and they do not usually see it as a judicial function to determine which of two alternative paths are best for the country. Nor is the Supreme Court openly familiar with the legislative tactic of compromising on one part of a legislative act for benefits in another part. Courts are just inherently poorly equipped for these kind of functions.
What is preventing the USSC from rejecting the substantial effects doctrine? If the USSC and the Constitution cannot limit the power of the federal government, why do we have them?
The Supreme Court made up the doctrine (it's not in the Constitution) and I suppose that they can, if they wish, dispense with it. It won't solve their institutional weaknesses, though.
What "specific rights and limitations found elsewhere" were the basis for overturning the VAWA?
I think that the Lopez and Morrison cases are fascinating. I don't expect much to come of any of that, though.
Here's a thought to consider: How many of our conservative justices do you think will claim that it's beyond the power of Congress to limit medical malpractice awards in state courts? ;-)
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.