by Jim Delaney, New York Tenth Amendment Center
Having culled through reams of often esoteric judicial analyses and rulings since ratification of the Constitution in 1787, the inescapable conclusion is that over the years the Supreme Court, Congress and the Executive have egregiously misinterpreted and progressively broadened the original and intentionally narrow meaning the Framers attached to both the Commerce Clause and the Necessary & Proper Clause. And therein lies the problem: liberal misinterpretation of these clauses has provided the national government the means to extend federal jurisdiction and control far beyond the Framers’ original intent and purpose.
Obamacare’s “individual mandate†has once again put Art 1, Sec 8, Clause 3, the Commerce Clause, front and center. And like all things Constitutional these days, even a casual observer can readily see that over the years the courts and the politicians have managed to grossly distort–indeed violate–the original meaning, intent and spirit of this clause by a litany of tortured legal argumentation and capricious social engineering justifications.
To begin with, the Commerce Clause states that the United States Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.†Not surprisingly, when linked with Art 1, Sec 8, Clause 18, aka the Necessary and Proper Clause, the federal government empowers itself to further and irresponsibly expand the original scope of the Commerce Clause
By way of background, as a direct result of the Founders’ unsettling experience with the Articles of Confederation, the Framers understood the practical need to better ensure uniformity in interstate commerce, that is to say the unencumbered “trade or exchange†of goods among the states, this in order to achieve efficient interstate commercial intercourse free of state-imposed discriminatory and retaliatory restrictions such as duties which if left unchecked could well have led to the collapse of the union itself.
As James Madison counseled, “[the federal regulation of commerce] is necessary to preserve the Union, for “without [such regulation], the Union will infallibly crumble to pieces.†Therefore, as nearly as I can deduce this effort at achieving uniformity was intended to reduce, minimize, or altogether eliminate needless and onerous state-mandated barriers and petty regulations which served to deleteriously impede the free and efficient trade or exchange of goods among the states. Period.
It is important to note that the extent of congressional jurisdiction over interstate commerce may be easily found in Clauses 5 and 9 of Art 1, Sec 9:
Clause 5: “No Tax or Duty shall be laid on Articles exported from
any state.â€
Clause 6: “No Preference shall be given by any Regulation of Commerce
or Revenue to the Ports of one State over those of another: nor
shall Vessels bound to, or from, one State, be obliged to enter,
clear, or pay Duties in another.
Clearly, the emphasis is on interstate duties and revenues, not upon the articles/goods traded or produced. Thus, as originally understood the power to regulate interstate trade did not mean the authority to prohibit, nor did it in any way imply the power to impose penalties for violations of the Commerce Clause.
Important to note too is that the Necessary and Proper Clause, a clause much exploited by progressives over the years, was in no way intended by the Framers to permit the federal government to assume any authority outside its clearly defined enumerated powers in Art 1, Sec 8. Simply put, our wise Framers were careful not to permit an ends justifies the means scenario. To wit, in John Marshall’s discussion of McCulloch v Maryland, he clearly drew a distinction between the proper definition of “necessary†as meaning “indispensably requisite†versus the improper definition being that of “convenientâ€. In other words, the federal government could not arrogate unto itself any extraordinary implementing power other than that which was clearly “indispensably requisite†in order to execute its clearly defined enumerated powers, in this case to regulate interstate commerce. In truth, a cursory examination of case law since ratification of the Constitution demonstrates how the proper definition has often been ignored, misconstrued or grossly misinterpreted by an overweaning Congress and an enabling gaggle of misguided or politically activist jurists over the years.
Having scanned applicable Federalist papers and Samuel Johnson’s Dictionary of the English Language, the latter which guided the Framers in their choice and meaning of words, it is obvious that the Constitutional meaning of “commerce†was limited to the trafficking and exchange of goods between the states from one port to another, and not at all to the regulation of INTRAstate production, manufacturing, sale, or the quality of goods/articles; that, therefore, the central and sole purpose of the Commerce Clause was to affirmatively prevent the confusing, conflicting and disorderly imposition of duties among the states. Nothing more.
Even casual examination of founding documents underscores our Framers’ clear understanding that “regulate†in 1787 meant “to make regular or normal†or “to remove impediments†to the free flow/transportation of interstate commerce. Again, it manifestly did not mean federal control or the federal imposition of regulations over the intrastate production of goods and services.
Significantly, the US v E.C. Knight Co. ruling in 1895, aka the Sugar Trust Case, asserted the states’ sphere of power in matters of commerce thusly:
1. Production is always local, and under the exclusive domain of the states
2. Commerce among the states (interstate commerce) does not begin until goods commence their final movement from their state of origin to that of their destination.
3. The sale of any product is merely an incident of its production and is therefore under the domain of the state because its effect on interstate commerce is merely incidental.
4. Combinations or associations organized for the sale and distribution of goods are under the regulatory power of the state since the effect on interstate commerce is indirect, not direct.
Can’t get clearer than that. The ruling upheld and sharply emphasized the core restraints on federal power as intended by the 10th Amendment.
Following passage of the Interstate Commerce Act of 1887 which created the Interstate Commerce Commission, the latter which was principally intended to check railroad abuse and discrimination, the level of federal usurpation which ensued has been nothing short of mind-boggling–almost laughable if it weren’t so utterly unconstitutional. (For example, I learned that the hapless hamburger is now subject to no fewer than 41,000+ state and federal regulations, covering everything from meat production, grazing practices of cattle, conditions in the slaughterhouse, processing methods, sales to retailers, restaurants and fast-food outlets. Ketchup is another example of regulatory overreach: to be considered Grade A, it must flow no more than 9 centimeters in 30 seconds at 69 degrees Fahrenheit. Progressive insanity!)
Though Congress has cited the Commerce Clause to justify its healthcare usurpation, logic and an objective analysis of original intent clearly demonstrate that individual mandates are woefully unconstitutional. But to myopic and progressive “living constitution†adherents who care little about the original meaning of the Constitution, or, frankly, the Constitution in any of its original form, Obamacare is merely another whimsicalnecessary and proper expansion of the federal government’s implied vs enumerated powers. Where are our Founders when they are so sorely needed?! Where are our uncorrupted constitutional scholars and jurists?!
Get the New Book Today!
“…But when the long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government [or abusive power], and to provide new guards for their future security.†Amen to that!
So, if the courts fail to restore constitutional governance, and the chances are better than even they won’t, what’s the answer to this unrestrained federal overreach? Very simply, we must take action to restore the sovereignty of “we the peopleâ€!!! Our merely waiting for the next election to throw the bums out and to replace them with what will likely be only slightly less progressively tainted legislators sounds good, but will accomplish nothing. Inescapably, state nullification action–with teeth–in combination with widespread civil disobedience are most likely the only way to restore constitutional order. It’s now or never…
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(“…whensoever the General Government assumes undelegated powers, its acts are
unauthoritative, void, and of no force; where powers are assumed by the federal government which have not been delegated by the Constitution, a nullification of the act is the rightful remedy.†James Madison, & Thomas Jefferson, Kentucky & Virginia Resolutions, 1798)
(“The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.” Thomas Jefferson, ltr to Albert Gallatin, 1808)
(“The court will almost assuredly resort to the great defense shield of denial known as ‘stare decisis’ as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact.” P.A. Madison, Federalist Blog, 2010)
Jim Delaney writes for the New York Tenth Amendment Center from Rochester-Greece, and maintains the blog, Opinerlog.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
Very good article. No doubt years of precedent has expanded the original meaning of key clauses in the constituion. But in regards to Obama care I think the opinion in Raich would be the main reason that Obama care would be upheld. Even given the substantial affects doctrine, Obama care might have been struckdown if it were not for the hugely expanded definition of economic activity from Raich.
Raich – in my view – was a constitutional atrocity, at best. The courts would likely rule that way, but they will not be correct.
Raich is bad news. To me, Raich is an excellent example of how Scalia talks the talk of Constitutionalism and Original Intent but can't walk the walk when the plain language of the Constitution results in something his conservative agenda doesn't like. His concurring opinion is a mess.
Thomas, however, in his dissent, nailed it as follows:
"If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."
It could go either way with health care. It's possible the court is concerned about the revival of interest in the original meaning of the Constitution (Tea Parties, e.g.). This could push it to decide, for political reasons, that it can invalidate ObamaCare because it forces people to buy something. This would be seen as throwing a bone to the moderates and conservatives in order to quell the anger.
The clause reads in part, "…necessary and proper for carrying into execution the foregoing (enumerated) powers, and all other powers VESTED BY THIS CONSTITUTION in the government of the United States, or in any department of officer thereof."
This clearly means only what it says: either the power to be legislated must be enumerated just prior in the text, or relevant to a power stated elsewhere in the Constitution.
You're right. But the issue is over how closely related the means chosen is to the enumerated end. Can Congress choose whatever means expedient to carrying out an enumerated power, as long as they don't violate any prohibition in the Constitution? Or must he means chosen be absolutely necessary to carrying out the enumerate power. I think both can lead to absurd results.
Here is the 10th amendment as it appeared in the Article of Confederation:
"“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation EXPRESSLY] delegated to the United States, in Congress assembled.”
Here is the 10th Amendment:
"“The powers not _______ delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
Marshall rightly inferred that the absence of the specificity by this omission was deference to the necessary and proper clause and common sense.
In you mucking up the Constitution for your political ends you always fail to mention another phrase in Act. I Sec. 8 "common defense and "general welfare".
Any honest reading of US history knows the Constitution was to create a strong(er) federal government and is vastly differnet from the Declaration of Independence. Stop re-writing our history!