Support for decentralizing power and rolling back overreaching federal acts continues to gain traction within the “mainstream” political establishment. Even some who generally support the DC-centric system seem to be recognizing that the federal government has completely torn itself away from the constitutional moorings meant to limit its power.
New York University Law professor Barry Friedman recently joined the Tenth Amendment Center in calling for a rollback of federal authority over both guns and weed.
Friedman’s Huffington Post article stands out in its consistent application of constitutional principle across the political aisle. The NYU professor grasps what eludes many American partisans: if the feds can control guns, they can control weed – and vice versa. And maybe they shouldn’t exercise quite so much control.
Friedman opens his article outlining the recent Kansas law nullifying federal gun acts, specifically provisions involving firearms manufactured and remaining within the state. He even includes the obligatory misapplication of the supremacy clause. But then, he suddenly goes all “tenther” on us.
Still, Kansas may be on to something. As the brewing collision of federal and state marijuana laws makes clear, there has to be some room for the states to have a say in what goods their citizens can possess and use. Eighteen states have legalized marijuana for medical purposes, and Washington and Colorado just did so even for recreational use. The problem is, what Colorado allows, federal law prohibits. Can the states opt-out from the federal laws?
But Friedman proposes a solution that illustrates the root of the problem: allowing the federal government to determine the extent of its own power.
Instead of praising Kansas for taking action and blocking unconstitutional violations of the Second Amendment, he suggests proponents of the right to keep and bear arms, and those hoping to end federal control of marijuana, should develop a new argument and go beg the black-robed federal staffers up at the Supreme Court to stop letting D.C. run roughshod over the states and the people.
Friedman focuses his attention on the commerce clause, rightly pointing out that the courts have expanded the idea of interstate commerce to the point that it encompasses virtually every economic activity. As Justice Clarence Thomas explained in his dissenting opinion in the Raich case “approving” federal marijuana regulations, “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
Even Friedman tacitly admits the courts have strayed far from the intent of the commerce clause, while praising them for doing so.
While Kansas’s argument may seem right as a matter of constitutional text, the Supreme Court rejected that interpretation of the Commerce Clause over seventy years ago — during the great Depression. What the Supreme Court rightly recognized beginning in 1937 is that just because something happens in Kansas alone doesn’t mean it doesn’t affect the rest of us.
Of course, the founders never intended to delegate the federal government power to regulate “any activity that affects the rest of us.” They intended for the federal government to regulate commerce between the states – in other words – trade crossing state lines. The constitutional meaning of commerce encompasses well-defined activities, as constitutional scholar Robert Natelson pointed out after exhaustive research into the founding era meaning of the word. Regulating commerce does not include the power to regulate agriculture, manufacturing and labor within a state. Just because some Supreme Court justices concocted a “new and improved” definition of commerce nearly 150 years after ratification does not change the actual meaning of the Constitution.
Instead of acknowledging that the Constitution means what it means, Friedman thinks like a lawyer. He approves SCOTUS bastardization of our founding document, and formulates a new argument in hope that the Court will embrace it and make it “the law of the land.” In other words, more of the same government by judiciary that got us into this mess in the first place.
Sadly, Friedman’s new angle further misconstrues the original meaning of the Constitution.
What legislators in Kansas should do – and what the Californians should have done – is read the Commerce Clause more carefully. Instead of focusing on “among the several States” they should focus on the word “regulate.” Congress only has the power to regulate commerce, not prohibit it altogether.
While the fact that Friedman thinks in terms of limiting federal power makes me smile, his take on the meaning of regulate has no basis in founding era thought. Regulation does, in fact, include the power to prohibit, as Natelson pointed out in an article published by the Tenth Amendment Center.
In the Commerce Clause, the verb “regulate” has three objects, not just one: interstate, foreign, and Indian commerce. Under Founding-Era (as well as modern) rules of interpretation you should read “regulate” the same way for all three.
But a major reason for giving Congress authority to regulate foreign commerce was to enable Congress to keep out foreign goods. The idea was to encourage American manufactures and rectify an unfavorable balance of trade. And a major reason for giving Congress power to regulate the Indian trade was allow Congress to block or limit sale of certain goods to the Natives, specifically liquor and firearms.
So even though the Founders thought that an immediate use of the Commerce Clause would be to free up interstate trade, the Founders also gave Congress authority to obstruct it.
Of course, when it comes to guns, the Second Amendment trumps Congress’ authority to regulate firearms even under the auspices of regulating interstate commerce. The Bill of Rights was ratified “to prevent misconstruction or abuse of its (the new government’s) power.” In other words, the feds can’t violate the Bill of Rights even while exercising legitimate constitutional authority.
To his credit, Friedman recognizes the problem. He appears to understands the danger inherent in unrestrained federal power. But he still hasn’t wrapped his head around the crux of the problem: a federal judiciary that long ago abandoned the actual meaning of the Constitution and a system that continues to build on its errors. Madison warned that untethering the government from the meaning of the Constitution would lead to chaos.
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!
Begging the Supreme Court to adopt another spurious constitutional construction doesn’t count as much of a solution. In fact, Kansas gets it right. When the federal government (of which the Supreme Court is a part) refuses to remain limited within its constitutional parameters, there must exist an external check on its power. Madison laid out the blueprint in Federalist 46 even before ratification.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
Friedman is half way there. Now if we can just get him to adopt tenther thinking to the cure as adeptly as he applied it to the sickness!