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.

[Huck]

Chicken or the egg arguments get tedious pretty fast. It is the Supreme Court which gives the Congress the constitutional authority to act. The question of how to resolve such inteprative controversies remains for another day.

[Huck]

Print it out. Go nuts :-) And please join in my ongoing discussions on this and related subjects.

[Mojave]

The real quandary for Scalia was that the Controlled Substance Act itself doesn’t fit under any “originalist” intepretation of the interstate commerce clause.

You're inventing your unsupported "facts", just like Raich did. Let's look some of the actual Congressional findings underlying the act.

The Congress makes the following findings and declarations:

(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.

(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have asubstantial and detrimental effect on the health and general welfare of the American people.

(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because -

(A) after manufacture, many controlled substances are transported in interstate commerce,

(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

[Cboldt]

-- Chicken or the egg arguments get tedious pretty fast. It is the Supreme Court which gives the Congress the constitutional authority to act. --

The authority for each/either to act is in the constitution. You were looking for the "final authority," and I am pointing out that Congress can reverse what it enacted, and thereby -IS- the final authority, as far as commerce clause encroachments go. That the Courts go along with it does not make Congress any less accountable for being the "final authority" on the subject.

-- The question of how to resolve such interpretive controversies remains for another day. --

I think the question has been asked and answered. As between the people and the government, EVERYTHING bottoms out on the perception of legitimacy and the willingness to use extreme violence.

[Huck]

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.

He's willing to when it suits him, not willing to when it doesn't. But forget Scalia. The larger point you make is one that supports my thesis. The Court's application of stare decisis (nowhere to be found in the Constitution itself) makes their decision all the more damaging, as the antifederalists pointed out at the time. Precedent upon precedent, etc.

That is why I argue that the problem is structural--the Federal Judiciary is too powerful, extends over too large a jurisdiction,and is unaccountable. In short, Article 3 was a mistake.

[Huck]

The question is not whether the controlled substances are involved in interstate commerce. The question is where the Congress derives its power to control substances.

[Bigun]

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.

Ding! Ding! Ding!

We have a winner here!

From the U.S. Constitution:

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 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.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The bolded and underlined part has been completely forgotten it seems to me!

[Mojave]

The question is not whether the controlled substances are involved in interstate commerce. The question is where the Congress derives its power to control substances.

Wrong again. The question is where the Congress derives its power to control substances that are part of the flow of interstate commerce.

The answer to that is simple: The Commerce Clause.

The interstate trade in illicit drugs is huge. Try to refute that.

[Huck]

In other words, they beg the question. They basically assume that anything that is involved in interstate commerce is subject to Congressional regulation. And then they establish that the substances they wish to control fall under the heading of interstate commerce.

That's not what the commerce clause meant when it was drafted. The Congress based its assumption of authority over any and all things directly or indirectly involved in interstate commerce on liberal readings of the commerce clause in the Federal courts. It's much easier than amending the Constitution.

So with the help of the courts, the Congress establishes that there is nothing under the sun it can't regulate, as long as it is interstate commerce, or related to intersate commerce, or as long as their is a rational basis for thinking it might have a substantial effect on interstate commerce, and Scalia goes along with it. It's ludicrous.

Refer to the actual meaning of the commerce clause at the time it was drafted.

[Huck]

Well, if you believe the commerce clause was intended and understood to mean when adopted that Congress had the power to make "all laws necessary and proper" for the regulation of any activity whatsoever so long as it was directly or indirectly connected to interstate commerce, than I can't help you.

You evidently ignored the section of my essay on the orginal meaning of the commerce clause.

[Mojave]

That is why I argue that the problem is structural--the Federal Judiciary is too powerful

"What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." --Gibbons v. Ogden, 22 U.S. 1 (1824)

You're arguing that the "Federal Judiciary is too powerful" while simultaneously demanding that it usurp powers explicitly delegated to Congress. You're also implicitly calling for the Court to operate without the limitations on its appellate jurisdiction set out in the Constitution.

[Huck]

Congress and the Courts are in cahoots, against the constitution

Of course they are, as was predicted by those who opposed the Constitution.

[antiRepublicrat]

Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on

But not all, thus violating the sovereignty of the state that doesn't want to prohibit it. If California wants to be the state that attracts all the stoners, then so be it. That's within the power of the people of California.

[Mojave]

Well, if you believe the commerce clause was intended and understood to mean when adopted that Congress had the power to make "all laws necessary and proper" for the regulation of any activity whatsoever so long as it was directly or indirectly connected to interstate commerce, than I can't help you.

Is there a substantial trade among the states in illicit drugs?

You keep dodging that issue.

[Mojave]

In other words, they beg the question.

No, they set out findings of fact that you haven't been able to refute in any particular.

They basically assume that anything that is involved in interstate commerce is subject to Congressional regulation.

Your statement just begged the question. Ironic.

[Huck]

You're arguing that the "Federal Judiciary is too powerful" while simultaneously demanding that it usurp powers explicitly delegated to Congress.

Incorrect. I'm demonstrating that the Court is not a reliable instrument for restraining the expansion of federal power; that in fact it is a consistent agent of federal expansion of power.

You are now begging the question of what power the commerce clause conferred on Congress. It apparantly doesn't mean what it meant. It means whatever you or the Court or Congress wants it to mean, and apparantly you're ok with that.

The commerce clause was understood to mean something specific and limited, not something universal and all-encompassing. The fact that you embrace such an absurd construction is telling.

[antiRepublicrat]

Congress also likes the Court’s power because politicians can grandstand on passing laws that they know are unconstitutional, and then blame the Court when they are overturned.

[Mojave]

I'm demonstrating that the Court is not a reliable instrument for restraining the expansion of federal power

The Court should not be a super-legislative body, making policy as it chooses. Congress makes policy.

[Huck]

I didn't beg any question. If you refer to section 2 of my essay, you will see my supporting facts for the original meaning of the commerce clause. Where are yours?

The CSA relies on supreme court jurisprudence which, I also demonstrate in my essay, was faulty. YOU are the one begging the question. In order for the question of a substance having a "substantial effect" on interstate commerce to be relevant, you must first demonstrate that the commerce clause was intended to confer on Congress the power to regulate all activity directly or indirectly connected to commerce.

So, prove it. Or else it is YOU who is begging the question. Show me the founding father who comprehended the commerce clause in such a way. Refute my quotes above from James Madison on the subject.

[Huck]

The Court should not be a super-legislative body, making policy as it chooses.

And yet you rely on just that sort of case law in your arguments. Hilarious.

Congress makes policy.

Indeed. I agree. The question that arises, then, is what check is there, in our system, to prevent the Congress or any branch of the fed gov from expanding its power beyond the intended limits. I intend to find an answer for that one at a later date.