In 1995, Supreme Court Justice Clarence Thomas, in a concurring opinion in U. S. v. Lopez, stated:

“We have said that Congress may regulate not only ‘Commerce…among the several states,’…but also anything that has a ‘substantial effect’ on such commerce. This test, if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life.”

“Under our jurisprudence, if Congress passed an omnibus ‘substantially affects interstate commerce’ statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional.”

He went on to state that under the substantially affects interstate commerce test adopted by the Court, “[c]ongress can regulate whole categories of activities that are not themselves either ‘interstate or commerce.’” The effect of this expansion of power, according to Thomas, comes “close to turning the Tenth Amendment on its head.”

What did he mean by that statement?

The Tenth Amendment is being turned on its head because the federal judiciary is creating and expanding federal power though a delegated power. Since the Tenth Amendment applies to powers not delegated, it cannot be invoked to prevent Congress from exercising a delegated power. Thus, Congress is being empowered through judicial fiat to use its delegated powers to circumvent the lack of an original grant of power over subjects that were not entrusted to that government in the first place.

In my opinion, the failure to argue this point will eventually result in the total demise of the federal system of government created by the Constitution.

The Commerce Clause is a delegated power.

The 10th Amendment cannot be invoked to restrict or negate a delegated power.

The separation or division of power between the States and the federal government did not vest the federal government with any authority over this issue within the several States when the Constitution was written and adopted. It was reserved to the States irrespective of and prior to the adoption of the 10th Amendment.

In my opinion, this needs to be the focus of the debate because the federal government cannot invoke a delegated power and apply it to subjects that were not granted to that government in the first place.

The Commerce Clause is a delegated power.

The 10th Amendment cannot be invoked to restrict or negate a delegated power.

The separation or division of power between the States and the federal government did not vest the federal government with any authority over this issue within the several States when the Constitution was written and adopted. It was reserved to the States irrespective of and prior to the adoption of the 10th Amendment.

In my opinion, this needs to be the focus of the debate because the federal government cannot invoke a delegated power and apply it to subjects that were granted to that government in the first place.