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The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)
self | 10/15/09 | Huck

Posted on 10/16/2009 8:29:12 AM PDT by Huck


In this essay I will attempt to show that the powers granted to the Federal Judiciary were excessive, that the creation of an all-powerful, unaccountable Supreme Court was a grave error that made the expansion of Federal power inevitable, and virtually limitless. I will then provide a brief investigation into the original meaning of the Commerce Clause. Last, I will argue that the harm created through Commerce Clause jurisprudence appears irreversible, having been upheld and applied by Justice Scalia and the liberal wing of the Court as recently as 2005. If Justice Scalia not only unwilling to overturn past Commerce Clause jurisprudence, but rather is willing to AFFIRM it, then there simply is no hope for repair.

1. Federal Judicial Power

Among the many errors in the Constitution, none has been as harmful as Article 3, Sec 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Anti-federalists, such as Patrick Henry, Samuel Adams, George Mason, opposed the ratification of the Constitution. In a series of essays known as the Anti-Federalist Papers, they warned that the myriad errors in the Constitution would lead to tyranny. Under the name “Brutus”, several of these papers addressed the dire consequences of the powers granted by Article 3, Sec.2:

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control…I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.

Antifederalist #78

The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.

Antifederalist #78

[I]t is easy to see, that in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds.

Antifederalist #81

2. The Commerce Clause

There has probably been no more insidious and far-reaching example of the Supreme court’s ability to “enlarge the sphere” of Federal power than their rulings on the meaning of “The Commerce Clause”. It turned out to be the most gaping loophole in the entire Constitution, what law school professors refer to as “The Everything Clause.” It is so broad a power, that it now grants to the Federal Government the power to regulate activity that is neither interstate nor commerce. But what did it mean originally? Let us examine this question, beginning with the clause itself, from Article 1, Section 8:

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

At the time the Constitution was drafted, the power to regulate interstate commerce was understood to mean the right to impose tariffs on imports and exports. That’s it. Nothing more. The Framers gave this power to the Federal Legislature in order to promote harmony among the states by preventing interstate trade wars. James Madison summed it up in Federalist #42:

A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity…

… The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The Commerce Clause, then, had one distinct purpose—to prevent states from imposing tariffs on imports and exports from other states, in order to “provide for the harmony and proper intercourse among the States,” as Madison characterized it. It was basically a free trade agreement among the states.

The Commerce Clause today, after nearly two centuries of Federal Judicial interpretation, goes far beyond its original meaning and intent. It now includes the power to prevent interstate tariffs and trade wars, it includes the power to regulate any activity, commercial or not, interstate or intrastate. It doesn’t even have to have a “substantial effect on interstate commerce.” The court merely has to decide that there is a “rational basis” for thinking that an activity has a “substantial effect” on interstate commerce, for that activity to fall under the power granted by the Commerce Clause. It is, indeed, the Everything Clause.

How did we get so far from its original, limited meaning? By the powers granted to the Federal Judiciary in Article 3, Section 2. As predicted in Anti-Federalist Paper 82:

They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one.

Law students could rattle off the landmark cases: Gibbons v Ogden, Swift v United States, Wickard v Fillburn. Case by case, precedent by precedent, the meaning was stretched like silly putty. Meatpackers fell under Commerce Clause power, because “although their activity was geographically "local," they had an important effect on the "current of commerce". Stockyards were subject to federal regulation, because they were “a throat through which the current [of commerce] flows.”

The climax of this expansion of Federal power was Wickard v Fillburn, a New Deal era case which proclaimed:

But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

In Wickard, the government was asserting its power to restrict the production of wheat. They were trying to raise wheat prices by reducing the supply by fiat. They asserted that even if someone was growing wheat to feed their own animals—it was not moving across state lines, it was not being sold—it still fell under the Commerce Clause regulatory power because it had a “substantial effect” on wheat supply generally.

And so there you have it. Not only had we drifted from the original meaning of the clause—that trade should flow freely between states. Wickard established that the power to regulate interstate commerce included activity that was not interstate, and that was not commerce. It only had to have a “substantial effect” on interstate commerce, whatever that means. More recently, even that was found to be too limited a power. Presently, the Court doesn’t even have to find a “substantial effect”, but merely a “rational basis” for thinking there is a “substantial effect.

3. Justice Scalia and Gonzalez v Raich

Which brings us to Justice Scalia, and Gonzalez v Raich. This case pitted the Justice Department of George W Bush against Angel Raich, and indirectly, the State of California. Raich was a resident of California, and under California state law, was legally permitted to cultivate marijuana for personal medical use. DEA agents intervened, destroyed the 6 marijuana plants, as part of an overall attempt to break up Calfornia’s marijuana co-ops and assert Federal marijuana laws. Raich sued.

The Justice Department argued that it had the power to regulate home-grown marijuana plants, even if they were not involved in any interstate commerce, indeed, even if they were not involved in any commerce. They based their argument on that old New Deal case, Wickard v Fillburn.

Here was a chance, one might have hoped, for the conservative justices to overturn Wickard! How can anyone serious about originalism support this absurd construction of federal power? Right? Wrong.

Not only did the court fail to overturn Wickard. It based its decision on Wickard, thus affirming it, and making it that much more unlikely that it will EVER be overturned. The decision was 6-3. The three dissenters— Rehnquist, Thomas, and O’Connor. The majority opinion was written by Justice Stevens, and joined by Kennedy, Souter, Ginsburg, and Breyer, and a concurring opinion was written by Justice Antonin Scalia.

Scalia’s explained his reason for writing a separate opinion:

I agree with the Court’s holding that the Controlled Substances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.

And what was this nuanced difference?

Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. …

The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189—190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.

It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.

Basically, he just thought they should toss in the “necessary and proper” clause. Other than that, he was in agreement. A nuanced difference, indeed.

Raich affirmed not just Wickard, but the long trail of Commerce Clause jurisprudence, which has “extend[ed] the limits of the general government gradually, and by insensible degrees.” Each case that formed “a precedent to the next, and this to a following.”

So if you can’t trust Justice Scalia, the most famous “originalist” of the last several decades, who can you trust? It appears you can trust Justice Thomas, who stated in his dissent:

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.


From this brief examination of the powers of the Federal Judiciary, the history of the Commerce Clause, and the willingness of even Justice Scalia (Et tu, Nino?) to adopt the most liberal constructions to reach a desired end, it appears to me that the Constitution will never return to any semblance of limited power. It is terminally ill, and will not recover. The fatal flaw was the awesome power granted to the Federal Judiciary. I will attempt in the future to explore what alternative to this Federal power could be devised in a future Constitution to avoid this fatal error.

TOPICS: Constitution/Conservatism; Government; Miscellaneous
KEYWORDS: chat; commerceclause; federalism; federalistpapers; scalia; supremecourt; tyranny; vanity
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To: Huck
Then under your interpretation of the Constitution, Congress can prohibit wheat farmers in ANY country from growing wheat.

You mean like Thomas Jefferson's embargo on foreign goods?

161 posted on 10/16/2009 1:00:13 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Bigun
-- When, if ever, has the congress exercised it's prerogatives granted by "with such exceptions, and under such regulations as the Congress shall make."? --

The Military Commissions Act aimed to "court strip" certain habeas corpus cases.

162 posted on 10/16/2009 1:01:42 PM PDT by Cboldt
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To: Mojave

You got banned once for saying I was a self-admitted pedophile. Do we need to do that dance again?

163 posted on 10/16/2009 1:02:28 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
You got banned once for saying I was a self-admitted pedophile.

I'm banned? Odd, I thought I was here.

164 posted on 10/16/2009 1:03:37 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck
-- even when it is the court, through its appellate role, that is expanding the meaning of the Constitution through judicial activism, the Congress, possessing regulatory power over them in this regard, is an aider and abettor. --

My point was not that. It's that Congress itself is the instigator of the over-reach against the Commerce Clause. It is the Congressional enactment that is offensive to the constitution in the first place.

I don't contend that Congress might or should "regulate" the Courts into a position that causes the courts to lack jurisdiction over a Congressional enactment that over-reaches the Commerce Clause.

Again, you were looking for an accountable body, where accountability was through voter reaction. That exists today, as Congress is accountable to the voter for passing laws that exceed the Commerce Clause. If Congress takes those laws off the books, there won't be anything for an unaccountable Court to uphold.

165 posted on 10/16/2009 1:07:46 PM PDT by Cboldt
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To: Rockingham
Take a look at United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) and the cases cited there.

Wickard was in 1939, this was in 1942, so this was not prior to Wickard.

166 posted on 10/16/2009 1:08:20 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Mojave

OK. You were suspended. Do you we need to do that dance again?

167 posted on 10/16/2009 1:10:11 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

When the facts are against you, pound on the law. When the law is against you, pound on the facts. When both are against you, piss and moan.

Poor you.

168 posted on 10/16/2009 1:14:10 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: TChris; Huck; All
The Constitution was inspired by God.

I have been enjoying this very learned debate--one far over my knowledge and ability to participate in--with no intention whatsoever to say a thing until I came upon that quote from TChris.

Now, TChris, if you are a mormon, it is part of your religion that the Constitution is Divinely inspired. You're wrong, but that's part of your religion. However, my immediate concern is the dangerous relativism and henotheism of someone declaring any one nation's charter--other than Israel's (and I mean the Jewish People, not the State)--as "inspired by G-d." If the Constitution is "inspired by G-d" perhaps it should be adopted by every nation on earth. And if it is not good enough or fit to be universal, perhaps you mean it is inspired by the American "gxd" and constitutes "the truth" for our country. Is there then a separate "truth" for every country in the world? Just how many "truths"--and how many "gxds"--are there?

My own political ancestry is strictly Federalist via Southern Unionist Republicans during the Civil War, but I certainly have never claimed the Constitution was perfect or "inspired by G-d" (hence my interest in following this conversation). This deviates from theories of government into theology and is nothing more than a form of polytheism: America's Constitution is "inspired by G-d," Ethiopia is ruled by the Solomonic dynasty, J*sus personally descended and struck the soil of Armenia with a hammer, etc. All human created systems of government--and our own system is very much human-created--are imperfect. Perhaps the Constitution is indeed very much worthy of defense as you say, but calling it "inspired by G-d" was either a clumsy bit of exaggeration, an assertion of LDS doctrine, or else just plain horrifying.

As I said, I am of Federalist political ancestry myself and am the furthest thing away from libertarian that one can be. But there are no separate "gxds" or scriptures or religious truths for all the various nations. There is One G-d and One Truth. I have long noticed this henotheistic tendency in American conservatism (and its even worse in the conservatisms of other countries), and I simply had to respond to TChris' comment. Doubtless my point will be misunderstood by all.

We now return to the debate in which I sincerely hope I will not interpose again.

169 posted on 10/16/2009 1:16:11 PM PDT by Zionist Conspirator (Bere'shit bara' 'Eloqim 'et hashamayim ve'et ha'aretz.)
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To: Huck


170 posted on 10/16/2009 1:19:32 PM PDT by Lancey Howard
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To: Rockingham
This is not simply a matter of judicial decisions but also of events and the desires of the American people.

If the American people wished to change the distribution of powers, they had a mechanism to do that in constitutional amendment. Any other mechanism is by definition illegal.

171 posted on 10/16/2009 1:22:59 PM PDT by antiRepublicrat
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To: tacticalogic

Not so. Wickard was decided in 1942, not long after Wrightwood Dairy.

172 posted on 10/16/2009 1:27:01 PM PDT by Rockingham
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To: Mojave

You’re good at implicit denials. That’s not a virtue.

173 posted on 10/16/2009 1:27:35 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
You’re good at implicit denials.

You're transparently bad at changing the subject and running for cover.

BTW, the 1895 Federal Anti-Lottery Act was a law, not an court decision. Let me know when you're ready to retract your "registered common carrier" falsehood.

And while we're at it:

Florida has no state income tax. Florida residents are still subject to the federal income tax.

The federal government has no general sales tax. Florida residents are still subject to the state's sales tax when they make their purchases.

Address it if you ever work up the nerve.

174 posted on 10/16/2009 1:33:33 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Rockingham
Wickard was decided in 1942, not long after Wrightwood Dairy

Ya gotta watch him.

175 posted on 10/16/2009 1:34:51 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: antiRepublicrat

At some point though, settled facts and the passage of time bestow legitimacy on what might have once been seen as illegal or unconstitutional.

176 posted on 10/16/2009 1:36:10 PM PDT by Rockingham
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To: Huck; 11th Commandment; 17th Miss Regt; 2001convSVT; 2banana; 2ndDivisionVet; A_Former_Democrat; ...
Thanks for the essay Huck.

Great discussion here re the likely misapplication of the "commerce" clause and its impact on the sovereignty of The States and The People.

Side note if you have the time, check out my slideshow here that is illustrative of the America many of us old fogies once knew:


177 posted on 10/16/2009 1:36:21 PM PDT by ForGod'sSake (You have two choices and two choices only: SUBMIT or RESIST with everything you've got!)
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To: Rockingham
Not so. Wickard was decided in 1942, not long after Wrightwood Dairy.

I don't have access to the case details from here, but I'll look into it.

If it is prior to Wickard, it is not by much, and basically involves the same federal expansion of power under the New Deal Commerce Clause as Wickard.

I question the motives of anybody claiming to be a political conservative while defending that doctrine and that interpretation of the Constitution.

178 posted on 10/16/2009 1:41:33 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Huck
I presume you've done a good deal of research relating to original intent, etc; do you get a feel for what the Founders may have been thinking re the ability of The States to counter this apparent out-of-balance arrangement?
179 posted on 10/16/2009 1:42:32 PM PDT by ForGod'sSake (You have two choices and two choices only: SUBMIT or RESIST with everything you've got!)
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To: Mojave
You're transparently bad at changing the subject and running for cover.

You can defend the "elastic" interpreation of the commerce clause all you want, and revel in the vast expanse of federal authority it's produced.

I'll watch while everone figures out you're part of the problem.

180 posted on 10/16/2009 1:44:34 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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