The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)

self | 10/15/09 | Huck

[Huck]

Introduction

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.

Conclusion

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.

[jessduntno]

"I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary."

Thanks...you made my point for me...you knew what I meant because it is true...and what does my comprehension have to do with this?

Honest answer, now;

True or false; this is not irreversible.

[Cboldt]

-- the more times an error is affirmed, the more unlikely it becomes that it will be reversed. --

I'd add to that that the Circuit Courts participate in this. The Circuits can misconstrue SCOTUS precedent, and SCOTUS can refuse cert if it likes the outcome. See chronic misconstruction of Presser, for example.

[Huck]

Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding.

One would think so. It wouldn't surprise me, on the other hand, to see the a conservative majority twist around its pretzel logic to reach a desired political end. They went one way on Lopez, and another way on Raich, for what I believe to be political reasons. No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity.

[Huck]

You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No. We’re stuck with it.

[Cboldt]

-- The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time. --

Yeah, but if it isn't the Courts subverting the limitations, it'll be the Congress and/or the Executive. One problem we have now is that all three branches are working in cahoots, to overstep the power and authority they were granted in the first place.

In other words, you can cut the judiciary out, but Congress and/or the executive will step into the power vacuum. At some point, the people either assert a credible threat of extreme violence, or the government will prevail because IT's credible threat of extreme violence is quite real.

[altsehastiin]

Raich was poorly decided in view of Morrison and Lopez, I’ll agree.

I disagree with your notion that Marbury v. Madison is wrong. You appear to argue that the Court should be incapable of invalidating any act passed by Congress. Depriving them of that power would disrupt our systems of checks and balances, a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.

[Rockingham]

(1) The protection of interstate commerce was a key reason for the creation of the Constitution. Under the Confederation, the separate states erected trade and tariff barriers that strangled commerce between the states. Without the Constitution and the Commerce Clause power to prevent that, the United States would have been vastly poorer and weaker.

(2) The differences between Scalia and Thomas on the Commerce Clause stem from larger philosophical differences in their understanding of originalism.

Scalia is unwilling to reverse case law decisions that have been settled for seventy five years or a century and incorporated into the fabric of American law and life. Thomas, a more stringent originalist than Scalia, is willing to reverse decisions that he sees as wrongly decided no matter how long settled those decision are.

Yet even when Scalia and Thomas are united, as they often are, they are but two votes on a nine member Court.

(3) In 19th Century America, Congress applied the Commerce Clause power more expansively so as to spur and protect the development of internal commerce and communications. Otherwise, every railroad, telegraph line, shipping company, and so on would have been exposed to the parochial and often predatory and corrupt enactments of state and local governments. This is squarely within the ambit of the original intent of the Commerce Clause power.

(4) The use of the Commerce Clause power as the constitutional basis for the New Deal federal welfare and regulatory state is another matter. A principled opposition to that expansion and an effort to reverse it are consistent with the philosophy of Scalia and Thomas.

(5) Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on. Permitting one or a handful of individual states to legalize marijuana subverts that ban is logically contrary to the commerce clause power.

[Cboldt]

-- No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity. --

The reason the Courts are unaccountable is because the legislature, which has the power of impeachment, prefers to use the Courts to implement unpopular law. Congress and the Courts are in cahoots, against the constitution. See Heller and upholding unconstitutional parts of the 1934 NFA.

That the people don't demand impeachment and removal of judicial hacks is just another example of how the people permit their government to run wild.

[Huck]

Thank God its not Bush's fault.

Raich featured the Bush Justice dept--Ashcroft and then Gonzalez, so they are partially at fault.

It's Scalia's fault!

Now you're just being absurd. First, I didn't say it was Scalia's fault. I didn't say he screwed America. I said he helped screw America. And he did. Facts are facts, even if you don't like them.

Conservatives are always at fault. Even when liberals do it.

Again, you're just being silly. Liberals are beyond hope. We don't look to them to further the cause of liberty. We don't look to them to reign in federal power. We don't look to them to aid us in keeping the fed gov within its intended limits. It's not even worth discussing.

But we DO look to conservative politicians, and conservative justices. We expect them to do it, and if they don't, we target them for unemployment.

If you cannot trust Scalia on an issue as important as this, then what hope is there? You have to appreciate what the commerce clause, as interpreted by the court, has done to the notion of limited federal power. And you have to appreciate how damaging it is to have that jurisprudence affirmed AGAIN. And yes, Scalia joined the liberals on this question. So cry your political tears all you want. The facts are what they are.

[Huck]

a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.

You can't be serious.

[altsehastiin]

On a more basic level, you complain about the Constitution making the Court superior to Congress in some cases, then complain about the Court NOT reining in Congress’ expansive view of its own powers under the commerce clause in Raich.

What do you want, exactly?

[altsehastiin]

“You can’t be serious.”

Ah, since we’ve moved on to pithy insults, any “analysis” of commerce clause jurisprudence that omits Lopez and Morrison isn’t worth the disk space it’s saved on.

[jessduntno]

“You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No.”

I’m confused? I asked true or false and got that?

Hahahahahha...thanks, made my day.

[JohnQ1]

Assuming that we will have meaningful elections in 2010, 2012, and beyond, might sufficient backlash against the health care “reform” open a window for a truly conservative administration? How then might the SCOTUS react? Do you see as much as a *remote chance* of “unscrewing” the nation.

An assumption of meaningful elections is a strong assumption. I’m sure Obama and the Dem congress are trying to arrange for their power to be permanent. But, I still hope and pray.

[Cboldt]

-- any "analysis" of commerce clause jurisprudence that omits Lopez and Morrison isn't worth the disk space it’s saved on. --

Considerable discussion takes place where the writer is under the belief that Lopez worked a reigning-in of Congressional power. It did not. Congress rewrote that portion of law (Gun Free School Zones Act), and there have been post-Lopez CONVICTIONS on the federal prohibition of guns in school zones.

[Huck]

The reason the Courts are unaccountable is because the legislature, which has the power of impeachment

That is not how the power of impeachment was understood at the time of ratification.

Antifederalist 78:

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that "the president, vice- president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

Antifederalist 80:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors....

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorised to construe its meaning, and are not under any control.

This power in the judicial, will enable them to mould the government, into any shape they please.

If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce.

[kralcmot]

thank you Huck

you dashed this off?

why can’t we have you somewhere in government?

or, are you.....maybe you better not say.

[Huck]

Well, speaking of pithy, I tried to hit a few cases along the way. I couldn’t catalog the entire history. For the purposes of this essay, I had to get Wickard in there. And Raich.

[Huck]

I honestly did. I set my alarm so I could get up early and work on it. And no, I don’t work in the gubmint, though, through taxation, I certainly work FOR the gubmint!

[Cboldt]

-- If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce. --

That depends on the basis for the disagreement.

Plus, I don't see an impeachment farce as any worse than a constitutional farce, where, e.g., every federal law is withing the limited powers granted by the constitution because everything has some relation to commerce.

If a judge make a pronouncement of law based on pure fiction (e.g., "Miller was convicted, we upheld the law"), that's a farce too. If all three branches o along with it, the people don't have a remedy in the constitution.

I appreciate that Congress does not want to impeach, because then IT would be accountable. Plus, as I noted above, Congress LIKES for the Courts to give force to unconstitutional Congressional enactments. They like being empowered, even if the empowerment is illegitimate under the constitution.