Posted on 10/16/2009 8:29:12 AM PDT by 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.
Well, whoah, we don’t want the ICClause “blotted out.” We want it properly penned in as originally intended, no?
That's incorrect. Nowhere in this essay do I even mention Congress. The expansive view of the commerce clause derives from the Supreme Court. Congress is the happy benefactor of this jurisprudence, but the Constitution does not empower them to decide such cases. That power belongs to the Federal Judiciary.
What do you want, exactly?
I want a better system of government. To that end, I am first examining the defects in the current system, just as the framers first examined the defects in theirs. In this essay, I am discussing the defects of Article 3, and demonstrating the results of the defects.
I mention at the end of the essay that the question of what to do instead of what we have remains an unanswered question. I hope to address it in the future, but I must complete my autopsy of the Constitution first.
And by the way, I didn’t mean my reply to you as a “pithy insult.” Pithy maybe, but not an insult. It was an expression of disbelief. I find the statement that our system has worked “more or less fine” a pretty amazing statement, and meant only to express that reaction.
That’s fine. Laugh yourself silly. A baseball team that is 20 games out of first place may mathematically still have a chance to win its division. But if they are in the division with a far superior team, and if all of their key players are out for the season, that possibility is only mathematical. The odds of them actually winning are virtually nil. This is easily understood, but go ahead and laugh. The destruction of liberty is hilarious, isn’t it?
Please add me to this ping list.
Tight lines bro.
OK my FRiend. I’ll have to compile an actual ping list.
The expansive view started elsewhere, in particular with the president and Congress. Get rid of SCOTUS, and the president and Congress will retain the same illegitimate, expansive views of their own power.
The power of government lies, in large part, with the public's acceptance of the government as legitimate. My personal point of view is to take as illegitimate, decisions and assertions of force that are based on demonstrable fiction. I think the bulk of the federal government is illegitimate.
Yep. Raich was NOT a defendant. She went to Court asking that they overrule Congress and enjoin the federal government from enforcing its own laws.
The Court declined her invitation to legislate from the bench.
Raich, who was known to have a history of purchasing drugs on the street, contended that she and her two anonymous drug suppliers would not let their future manufacture, distribution and sale become interstate in nature. Naturally she provided no guarantees for her self-serving prognostication.
That Thomas would let his opinion be controlled by such an absurd hypothetical does not speak to his credit in that decision.
As Scalia noted:
Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market.
That's fine. Along those lines, I refer you to this, from the Declaration of Independence:
That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Whenever any FORM of government becomes destructive to these ends. That is the question at hand. If it were merely a case of a bad administration acting with poor judgement, revolution would not be justified, especially when political solutions exist to remedy the problem.
It is when the FORM of government is at fault that revolution, peaceful or otherwise, is justified. What I am arguing is that it isn't the administration of our Constitution that is at fault--it is The Constitution. That as many good ideas as it may contain, it nevertheless contains several fatal errors that have been exposed over 200 years of experience.
Many of these flaws were known at the time to the antifederalists who opposed the Constitution. But the Federalists won. Now, having tested their product for 200+ years, I contend it isn't merely the people or the politicians that are to blame. The system itself is faulty.
And so I have been performing an autopsy on the Constitution, so that I might better understand its flaws. I'm sharing these thought on FR so that I can engage in discussion and debate on the subject, which I believe will improve my knowledge and understanding on the subject.
At some point, I will attempt to design a better system.
In the meantime, I can't believe 5 hours have gone screaming by! I have to pull myself away. I got up early just so I would have some time to spend on this, but I've already spent too much time on it. Thanks for your thoughts.
Your entire post completely ignores the original meaning of the interstate commerce clause. You can’t even get to Scalia’s reasoning without accepting Wickard. And if you accept Wickard, you are by definition a liberal justice.
yes...its called being absurd to highlight absurdity. You made Scalia the point of your essay, you knocked him in the headline for one reason: to get people to read what you wrote. There is a name for those who do that.
So I did read your post. And now I've finished with it.
The real quandary for Scalia was that the Controlled Substance Act itself doesn’t fit under any “originalist” intepretation of the interstate commerce clause. So he adopted the New Deal era interpretation, so he could reach the end result he personally desired.
The difference, of course, is that the president and the Congress are accountable to the people. They must face the ballot box. And their mistakes are much more easily reversed, through new legislation. Supreme Court decisions, and the reliance of the Court on stare decisis, are much more difficult to reverse. And the justices themselves are totally unaccountable. Therefore, if I get to choose who gets the final say, an unaccountable court, or an accountable legislature, I'll take my chances with the legislature.
Bravo! Well put, FRiend!
Nonsense. Raich provided NO substantiation for her assertion that her drug dealing would be entirely intrastate in nature.
You want the court to legislate from the bench based on her absurd hypothetical. You can't go more hardcore left than that.
And if you accept Wickard, you are by definition a liberal justice.
Have you ever read it? If so, perhaps you could explain how a judicially invented Marketing Card entitlement should theoretically work.
“Again, you’re just being silly.”
Sounds like a leftist tactic to me...when someone disagrees they are “silly” or “ill informed.”
You have your wish, as far as the Commerce clause goes. The Court has upheld Congressional enactments. Get rid of the enactments, and the Courts would have nothing to uphold.
How original /s
You made Scalia the point of your essay,
Incorrect. My essay was clearly structured in three sections, in a logical order. 1) The power of the judiciary is too expansive 2) The commerce clause is the finest example of this fact 3) If you're counting on conservative justices to save us, think again.
you knocked him in the headline for one reason: to get people to read what you wrote.
Again, incorrect. I included him in the headline in part to draw attention to the essay-- I used the wording I used in a provactive way. There is nothing wrong with that. If you have something to say and you want to be heard, you try to grab people's attention. You don't think El Rushbo does the same thing every day? So the wording of the title is designed to draw attention, but his inclusion in the headline is not random. It's substantive.
Scalia is in the headline because the title of the essay follows the afformentioned structure of the essay: 1)Fed Judiciary 2)Commerce Clause 3)Even a Scalia can't/won't save us from 1 and 2.
Haven’t read the full thing, but from the first several paragraphs...
BRAVO!!!
Well done.
Hope you don’t mind if I copy and paste it so I can read at work.
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