Replies

"“Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”"

Thanks for replying.

Fortunately, Justice Joseph Story had given us examples of the do's and don'ts (web spelling) of how to interpret the Commerce Clause, in a single paragraph nonetheless.

Story had explained that although many things are intimately related to commerce, the federal government is to interpret Commerce Clause narrowly (my wording). And if the states later decide that Congress need expanded Commerce Clause powers then the states can amend the Constitution.

"The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments [emphases added]." —Joseph Story, Commentaries on the Constitution 2:§§ 1073--91
"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." —Thomas Jefferson: The Anas, 1793.

One of the reasons that the very corrupt, post-17th Amendment ratification Congress is now continually overstepping its constitutionally limited powers is this imo. To his disappointment of SCOTUS finding some of FDR's early New Deal programs unconstitutional, the shrinking, state sovereignty-respecting majority of Supreme Court justices emphasizing the already reasonably clear meaning of Congress's Commerce Clause powers in terms of the 10th Amendment (10A) as the following excerpt from United States versus Butler shows.

"From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

Unfortunately, FDR was reelected enough times that he was able to form a state sovereignty-ignoring majority of activist justices. FDR's activist majority justices ultimately wrongly politically “repealed” 10A in Wickard v. Filburn (Wickard) imo.

More specifically, using inappropriate words like “concept” and “implicit,” also a reference to state power manufacturing, here is what was left of 10A after FDR's state sovereignty-ignoring activist justices got finished with it in Wickard.

"In discussion and decision, the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept [???] of sovereignty thought to be implicit [???] in the status of statehood. Certain activities such as "production," manufacturing, and "mining" were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause [??? emphasis added]." —Wickard v. Filburn, 1942.

Regarding this excerpt, consider that regardless that Story had used power to regulate manufactures as an example of something having an intimate relationship with commerce, but was still out of the scope of Congress's Commerce Clause powers, FDR's justices seem to have wrongly indicated that manufactures is not a state power issue.

The bottom line is that this politically correct "insight" of FDR's justices into state sovereignty has arguably been used as a license to justify unconstitutional federal interference in the affairs of the sovereign states since SCOTUS wrongly decided Wickard in Congress's favor imo.

One remaining question about FDR's New Deal programs is this. Since FDR was said to be a popular president, then why didn't he lead Congress to first successfully petition the states to give Congress new constitutionally express powers to establish his otherwise unconstitutional New Deal programs? The new amendments could have been called FDR's New Deal Amendments.

Instead, it's almost as if FDR and Congress didn't understand that the Constitution was amendable.

Corrections, insights welcome.