“I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” So said presidential candidate, Senator Barack Obama, at a 2007 campaign event in Nashua, NH. And although proponents of medical marijuana later had reason to doubt him after his DEA agents raided a California dispensary, Attorney General Eric Holder soon reassured everyone that there would be change.

After a press conference held by Holder that took place shortly after the president’s inauguration, many celebrated what they interpreted as the fulfilment of his earlier promise that under his administration, the Justice Department would no longer raid medical marijuana dispensaries that were established legally under state law.

But was any such a promise in fact ever made? If one examines Obama’s campaign promises regarding medical marijuana and listens carefully to the answer Eric Holder gave at the press conference mentioned above, it’s possible to conclude that no protection or immunity was ever promised for organizations or individuals that cultivate or distribute medical marijuana in any state for any reason. Here’s what was actually said at the press conference that got so much attention.

A reporter made an observation and asked Holder a question about medical marijuana, saying:

“Right after the inauguration there were some raids on California medical marijuana dispensaries. Was that a deliberate decision by the Justice Department..do you expect those raids to continue?”

Holder responded to the question by saying:

“No..”, but then suddenly, before he could continue, Holder was interrupted by the same reporter, who happened to have microphone trouble at that same moment, making it almost impossible to hear what he said. One can make out the word “campaign”, but that’s about it. In any case, after the interruption, Holder continued. But his response became much more ambiguous. He said:

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American policy.”

Just what did Obama say during the campaign? While never promising voters safety from federal raids, arrest or prosecution, Candidate Obama made numerous statements that he did not believe raiding medical marijuana users should or would be a top priority of the Justice Department under his administration.  In fact, he put forth the following statement during a July of 2007 town hall meeting in Manchester, New Hampshire:  ”The Justice Department going after sick individuals using [marijuana] as a palliative instead of going after serious criminals makes no sense.”

In a statement made during a November of 2007 town hall meeting in Iowa he seems to support the use of medical marijuana as a means of prescribed pain relief.

“My attitude is if the science and the doctors suggest that the best palliative care and the way to relieve pain and suffering is medical marijuana then that’s something I’m open to because there’s no difference between that and morphine when it comes to just giving people relief from pain. But I want to do it under strict guidelines. I want it prescribed in the same way that other painkillers or palliative drugs are prescribed.”

While relaying these assurances during the campaign, they are certainly not reflected in the Justice Department’s policies these days, at least when it comes to dispensaries.  It seems in fact the the DOJ has taken a more direct approach, through it’s US Attorneys.

Threatening Letters

Earlier this month Governor Chafee of Rhode Island received an unsolicited letter from U.S. Attorney Peter Neronha. The letter made it clear that the Justice Department still considers marijuana cultivation and distribution to be a violation of federal law, even if done in accordance with state laws in places where medical marijuana is permitted. The letter lists potential actions the Justice Department might consider in reaction to what it deems to be violations of federal drug laws, including criminal prosecution of those involved in the cultivation and distribution of medical marijuana.

Other states that have received similar letters include Washington, California, Colorado, Vermont and Arizona. And while some states, like Vermont, are proceeding with legislation to legalize the medicinal use of medical marijuana anyway, other states seem to have been deterred. Washington’s Governor Christine Gregoire, for example, vetoed most sections of  S.B. 5073, which would have licensed dispensaries and protected patients from arrest. In other states, such as Arizona, where a law allowing medical marijuana has already passed, the implementation of certain measures now mandated by state law, such as the licensing of dispensaries, have been put on hold, pending the outcome of a federal court case.

Arizona’s Attorney General, Tom Horne, filed a lawsuit in federal court shortly after Department of Health Services Director, Will Humble, received a letter from U.S. Attorney Dennis Burke, warning him that:

“Compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution.” And that, “The United States Attorney’s Office for the District of Arizona (“the USAO”) will continue to vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving  marijuana, even if such activities are permitted under state law.” [Emphasis added]

The complaint, filed by the Arizona AG names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants and seeks a declaratory judgment, in order to resolve competing state and federal pressures. But even if the lawsuit is a sincere effort to obtain clarification and is not a mere pretext to delay the implementation of the medical marijuana law, is it really worth the delay and expense?

Enough is Enough

Both Governor Brewer and the Attorney General could save Arizonans a lot of time and money by admitting that everyone knows what the outcome will be already. The federal judiciary will claim what it has been claiming for decades: That federal law always trumps state law because of the “supremacy clause”. This has almost always been the court’s opinion, regardless of how deliberate, palpable or dangerous a violation of the Constitution the federal “law” in question might be.

For decades, the U.S. Supreme Court has engaged in naked judicial usurpation of the states’ reserved powers, by declaring that Congress has the constitutional authority to regulate or ban a plant that is cultivated, distributed and consumed, all within a state’s boundaries. Even if this plant never leaves Arizona, the Supreme Court says Congress has the authority to outlaw it because of the Constitution’s “commerce clause”.

This is a completely perverted interpretation of the “commerce clause”, of course. After all, the “commerce clause” simply states thatCongress shall have power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. But what can one expect from a group of activist judges that one blogger described as nine unelected and unaccountable bureaucratic central planners who detest the limits of the Constitution?

The fact is that despite decades of case law, the federal government has no genuine constitutional authority to regulate marijuana, medical or otherwise, that is never transported across state lines for commercial purposes. The President knows it; the Attorney General knows it; Governor Brewer knows it, and those of us who know anything about the Constitution’s original meaning and intent know it. And they know we know it!

Isn’t it time that Governors and state Attorneys General stopped wasting our precious time and money playing these silly legal games, grow a spine, and actually fulfill the oath they took to support and defend the Constitution, including the Tenth Amendment? If the people of a state decide in their sovereign capacity that marijuana should be legal, for any reason, or no particular reason at all, then their representatives in state government need to tell the folks in Washington, D.C., in no uncertain terms, that they have no say in the matter.

This is the system of vertical checks and balances that the Constitution, as it was understood by those who ratified it, established. So when it comes to decisions that the Constitution clearly leaves to the states or to the people, the time is long overdue for those who claim to be our public servants on the state level, to quit begging Washington, D.C. for permission and to start doing a little more checking and balancing already!

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

Not surprisingly (I know, as an Arizonan, my pride is showing), Arizona is now one of four states this year to propose an Intrastate Commerce Act. Please note: that’s intrastate, not interstate!

The bill, which is based on model legislation written by the Tenth Amendment Center, has a name that sounds fairly innocuous, but do not be fooled! In fact, I predict that SB 1178 will startle our overlords in Washington, DC and deeply offend them in much the same way that Arizona’s immigration act, SB 1070 did.

The bill’s primary sponsors are Sen. Sylvia Allen, Sen. Linda Gray, Sen. Gail Griffin, Sen. Brenda Barton, and Sen. Judy Burges. Co-Sponsors include Sen. Frank Antenori, Sen. Andy Biggs, Sen. Al Melvin, Sen. Don Shooter and Sen. Chester Crandell.

If passed by the Arizona State Legislature and signed by the governor, SB 1178 will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.

Wow! Now if that were not offensive enough to Washington politicians and bureaucrats, the bill goes even further and would impose the following penalties:

A. Any official, agent, or employee of the United States government or any employee of an entity providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this chapter is guilty of a class 6 felony, except that any fine imposed shall not exceed two thousand dollars.

B. Any public officer or employee of this state who enforces or attempts to enforce an act, order, law, statute, rule or regulation of the United States government in violation of this chapter is guilty of a Class 1 misdemeanor, except that any fine imposed shall not exceed five hundred dollars.

Can anyone deny that this is truly nullification legislation with teeth?

But setting aside the penalties for a moment, please allow me to unpack the concepts contained in the first part of the bill. I also hope you won’t mind if I quickly cover some history while I’m at it.

If you have been paying attention to the federal court battles concerning what has come to be known as “Obamacare”, you’ll know that Roger Vinson, Senior U.S. District Judge for the Northern District of Florida, recently declared the Obama administration’s health care overhaul to be unconstitutional. If you’ve really done your homework, you might even understand why he declared “Obamacare” to be unconstitutional. But if not, here’s how Michael Boldin, founder of the Tenth Amendment Center explains it:

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” Michael Boldin, said.

Judge Vinson’s conclusion was, as he said,  based, “..on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition.” In other words, even though Judge Vinson may have given the people of the several states a favorable ruling this time, he’s still an unapologetic judicial supremacist who makes it clear that we are a de facto nation ruled by case law rather than a federal republic governed by the Constitution, according to its original, fixed and knowable meaning.

Congressional Commerce Clause Abuse (CCCA)

In his article Commerce Clause Abuse, Dr. Walter E. Williams, who serves on the faculty of George Mason University, wrote:“The Constitution’s Article I, Section 8, paragraph 3 gives Congress authority ‘To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes’..the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn’t intend for the Commerce Clause to govern so much of our lives.”

What Dr. Williams points out here is simply what James Madison explained a long time ago: That the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. In fact, the man who is often called The Father of the Constitution wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

No honest student of American history can conclude that a significant number of either the framers or ratifiers of the Constitution ever envisioned Congress would have plenary authority to regulate entire industries, such as the health care industry, or any form of commerce conducted entirely within an individual state’s boundaries.

Rather, as Michael Boldin asserts, “The feds are authorized to make commerce in health care across state lines, ‘regular’ – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever.”

What do do?

If you think that the feds are going to read Tom Wood’s new book and suddenly decide to limit their own power, or that all we need to do is elect the right people to federal office, or to obtain a favorable ruling from the Supreme Court, or that checks and balances between the three branches of the federal government will eventually deter acts of federal usurpation, I have some beach front property in Yuma, AZ that you might be interested in. You’ll have to wait a little while for California to fall into the sea, of course.

But on the other hand, if you are willing to be just a little bit more realistic, you can instead choose to recognize that although we’ve heard the promises of federal politicians before, and we know that even those who sincerely may have started out intending to roll back unconstitutional federal power (Ronald Reagan comes to my mind), the fact is that the strategy of regime change for Washington, DC has failed and will continue to fail for the foreseeable future. Pursuing the strategy of regime change for DC is like putting a band aid on a spurting arterial wound. We’re quickly running out of time and what the states need to adopt with regard to Washington, DC is a policy of containment that is more like a tourniquet!

We all know that year after year, regardless of which party dominates the so called “federal” government, its size, expense and intrusiveness continues to grow, unchecked. So finally, legislators in states like Arizona, Virginia and New Hampshire have decided to take matters into their own hands and pursue their own policy of containment. Sanity at last!

The number of states that have decided to stand up and resist the tyranny of our so called “federal” government, in order to arrest the steady consolidation of power in fewer and fewer hands is somewhat surprising, yet very inspiring. They have decided, with the support of average citizens like you, to reclaim the American Revolution by using the rightful remedy that the author of the Declaration of Independence recommended back in 1798. It’s called nullification.

The W.V. Coal Miner

Over the last couple of months, we’ve seen increased media attention focused on state efforts opposing the federal health care act passed last year. Along with state legal challenges and health care freedom legislation focused on the insurance mandates, eight states recently proposed bills declaring the entire health care act null and void, and imposing criminal penalties on any agent enforcing the act within their state borders.

But health care does not stand alone as an issue drawing the ire of state lawmakers. Many state legislators have grown increasingly frustrated with overreaching federal activity into areas rightly reserved to the states by agencies such as the EPA and FDA.

West Virginia Assembly Delegate Gary Howell (R-Keyser) recently introduced legislation into the House of Delegates  “establishing that the environmental regulation of coal and certain coal products mined and used within the state are exclusively regulated by the West Virginia Department of Environmental Protection.”

H.B. 2554 finds its basis in the Ninth and Tenth Amendment of the U.S. Constitution, as well as the West Virginia state constitution.

“The regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states under the Ninth and Tenth Amendments to the United States Constitution and is specifically retained by the State of West Virginia according to Section 2, Article I of the West Virginia Constitution.”

The bill enjoys bipartisan support with three Democrats signing on as co-sponsors.

Howell said a recent EPA decision to pull a permit and shut down Spruce 1 mine shocked many state lawmakers and increased the possibility of passing the legislation.

“The odds jumped as West Virginia legislators are looking hard to fire back,” Howell said.

Spruce 1, located in Morgan County, was the largest surface mine permitted in Appalachia. The U.S. Army Corps of Engineers issued the permit in 2007 after a 10 year approval process, which included an assessment indicating the mine met clean water standards. But on Jan. 13, the EPA vetoed the permit and shut down the mine.

“EPA is taking this action under Section 404(c) of the Clean Water Act because the discharges associated with the DA Permit in Pigeonroost Branch, Oldhouse Branch and their tributaries will have unacceptable adverse effects on wildlife,” reads the agency’s final determination. “In addition, the impacts downstream due to the destruction of those streams will result in unacceptable adverse impacts to wildlife and also warrant EPA’s action under Section 404(c).”

Arch subsidiary Mingo Logan Coal Co. operates the mine. The company stands to lose a $250 million investment and officials estimate it will cost more than 200 high paying jobs.

“To give the EPA that much authority and the willingness to use it means that investors are going to be very cautious about investing in supplying energy when the federal government can nullify those investments and send your workforce home simply because they, on second thought or hindsight, decide that’s what they want to do,” Bill Bledsoe, executive director of the Norton-based Virginia Mining Association, said. “This EPA veto power doesn’t extend only to coal; it extends to anything. It means EPA can come in and shut any operation down without due process.”

Howell said the shutdown of a single mine represents just the tip of an iceberg, with federal regulation  hobbling West Virginia’s coal industry and hitting the state hard in the pocketbook.

“It is costing thousands of jobs and millions in reduced taxes to the state,” he said.

Howell said the bill will face its biggest hurdle in the judiciary committee. He fears committee members may kill the bill, thinking it unconstitutional. But Howell has already considered that possibility.

“Constitutional lawyers from the Cato Institute and the Goldwater Institute have both looked at the bill and say it passes Constitutional muster,” Howell said.

Federal judges would likely disagree. Courts have stretched the commerce clause far beyond its intended meaning, ruling that Congress can regulate virtually anything. But the framers intended the commerce clause to simply regulate trade between states, and never envisioned federal power extending inside state borders or to areas such as mining. James Madison wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

(For an in depth look at the original understanding of commerce click here.)

Howell said that his concerns run even deeper than protecting the Mountaineer State’s most important industry. It’s a matter of liberty.

“I’m the direct decedent of one of George Washington’s soldiers. For more than 230 years my family has defended the Constitution by force of arms in the service of our nation,” he said. “I have chosen to serve our nation as an elected official. I’m tired of big government ignoring the Constitution and damaging my state and my nation. I’m fighting back to provide jobs and economic stability to West Virginia by using the very tool the founders gave us as state legislators, the 10th Amendment.”

Throwing any anachronistic caution to the wind, Congress now assumes the authority to regulate anything and everything it deems worthy of its attention. Over 300 federal regulatory agencies exist, such as the FDA, EPA, USDA, CDC, OSHA, HHS, ATF, FDIC, FAA, FCC, FTC, FETC, FEMA, FERC and many others, each of which is empowered by Congress to effectively legislate through its regulations that are enforceable by law.

As with any institution, these seek greater influence and power—ostensibly to better accomplish their agency’s mission. Capitalizing upon any circumstance that might justify a request for an augmentation of their powers, bureaucratic busy-bodies are constantly clamoring for more legislation to attain that end. At times, they simply produce a new power by fiat.

If and when asked where they derive their authority to micro-manage the economic exchanges of American citizens, congressmen will defer to the judicially-inflated commerce clause. Like a plastic surgery addict, this constitutional provision has become entirely unrecognizable from its original form.

Originally, the constitutional authority to regulate interstate and foreign commerce was understood to be used to smooth out trade relations and activity between the states and between America and other countries. This primarily changed during FDR’s administration, when his stacked court rubber-stamped his economic meddling in the lives of individuals. The precedent then established continues to this day, leading the federal government to show no regard for what level and nature of commerce they are (wrongfully) “regulating”.

Despite decades of usurped authority, the constitutional reality is that the federal government was nowhere delegated the power to regulate intrastate commerce. Any economic activity which remains within the borders of a sovereign state should not come under the purview of the federal government, despite what a few lawyers in black robes appointed by FDR shortly thereafter told FDR. The states can and should reclaim this stolen power, and affirm their own authority to manage the economic activity which remain within their borders.

Last year in Utah, a small step in this direction was taken in conjunction with several other states. SB11 passed and was signed by the governor, putting into law an exemption from federal regulation for any firearms or firearms accessories both manufactured and sold within the state. This was a great start, but far more needs to be done; there are infinitely more areas of commerce than just guns.

To that end, the Utah Tenth Amendment Center is announcing today the creation of the Utah Intrastate Commerce Project—an initiative which seeks to help promote and support additional legislation that provides similar exemptions for other areas of commerce.

While all Utahns are subjected to the regulatory mandates of a vast cornucopia of federal agencies, not all can withstand the impositions forcibly made. Consider the massive compliance costs, paperwork, and regulatory hurdles required of those in the agricultural industry, for example. While large, multi-national companies can absorb these impacts without missing a beat, small family farms and other local agricultural businesses are significantly impacted, often having either their profit or existence threatened. The recently-passed FDA “food safety” law only aggravates this burden—and they’re only one of 15 agencies regulating the food industry!

Thus, the first bill being supported by the Project is one sponsored by Utah Representative Bill Wright—a dairy farmer by trade—which applies the same concept as last year’s firearms bill to agriculture. Under this bill (which is currently under review by legislative attorneys), those who produce agriculture in the state which is then sold in the state would be exempt from federal regulations. Their commerce would be entirely intrastate, and thus not subject to the purview of the federal government. The only regulations with which they would need to comply would be those coming from either the state or municipal government.

Imagine how very liberating this bill would be for our farmers! Those who sell their products at farmer’s markets, through CSAs, to local restaurants, and in other ways to fellow Utahns would be shielded by state law in disregarding the mandates imposed by the central government which has long exceeded and abused its constitutional authority. Compliance costs would be eliminated, productivity and innovation would surge, and the booming local/natural/fresh food sector would have reduced costs passed on to the consumer.

This is a win on multiple levels: for constitutional government; for the liberty of farmers and their customers; and for local agriculture which has long struggled under the weight of the federal government’s regulatory burdens. We’re very excited about this bill and believe its passage would be a great thing for all Utahns, whether or not they engage in intrastate commerce. Where Utah leads, other states will surely be following.

Be sure to visit the Utah Intrastate Commerce Project website to learn more, subscribe to the email list for important updates, and help spread the word!

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Imagine you wake up one morning and walk down into your basement to find that while you slept a pipe burst, spewing hundreds of gallons of water into your cellar. To your horror, swirling water already reaches above your knees.

You immediately go to your main water shut-off, only to find it completely jammed. So, you call a plumber, who informs you that he will come as quickly as possible.

Of course “quickly” in plumber parlance means a couple of hours. When he arrives, water flows above your waist. But whatever this particular plumber may lack in speed, he makes up for in efficiency, and within moments he shuts off the flow of water and proceeds to fix the broken pipe.

A couple of hours and several hundred dollars later, the plumber leaves you with a brand new, leak free pipe. In all likelihood, you would feel a great sense of relief and perhaps even a touch of euphoria knowing that the pipe was fixed and  water was no longer free-flowing inside your home.

Just one problem – you still have several feet of water standing in your basement.

Cleanup wasn’t in this particular plumber’s job description.

The recent ruling striking down the insurance mandates in the federal health care legislation leaves me feeling a bit like the man in this little tale. I’m excited that a judge got it right – at least within the narrow scope he addressed. But when it’s all said and done, I still have a bunch of water in my basement.

First the good news.

U.S. District Judge Henry Hudson  understood the Constitution well enough to reason that the founders never intended a power to force citizens to engage in commerce.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I….

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.

Hudson stopped the leak.

And while I see this as a positive, I still can’t bring myself to join in with those applauding the ruling as a great victory for the Constitution.

My basement remains full of water.

Although Hudson struck down the insurance mandates, reading through the entire decision reveals that he has no issue with the notion that the federal government has the power to regulate health care. He accepts the expanded view of the commerce clause formulated by the courts since the 1930′s. He takes no issue with Wickard v. Filburn, a ruling that held the federal government could fine a farmer for growing wheat for his own use, even if it never left the farm, reasoning that his consumption of his own wheat still had a substantial effect on the interstate market. And he consistently uses the terms “commerce” and “economic activity” interchangeably.

Get the New Book Today!

But the founders did not understand commerce to mean all economic activity. Constitutional scholar Robert Natelson did extensive research on the word “commerce” and found that its meaning, as understood in the 18th century, centered around trade. Not manufacturing. Not agriculture and certainly not health care.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison made this clear.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

When applying a proper understanding to the framers’ intent in granting Congress the authority to regulate interstate commerce, the Tenth Amendment Center holds that regulation of health care lies outside of the enumerated powers granted to Congress and therefore the entire health care bill is unconstitutional – not just the insurance mandates.

But the courts have stretched the commerce clause so far beyond its original intent and meaning as to render it almost all encompassing.

Hudson’s ruling places a roadblock in the progressive drive to grant Congress unlimited power to regulate virtually everything. And it certainly creates problems for President Obama and those seeking to expand the role of government in health care.

But it does nothing to restrain Congress from exercising power never intended by the founders. It does nothing to roll back more than 50 years of unconstitutional judicial interpretation. (For more on the judiciary as the final arbiter, click here.) And it does nothing to stop Congress from meddling in health care.

The Tenth Amendment Center applauds efforts to curb federal power from every front. But it is our view that the states will ultimately have to take matters into their own hands and nullify unconstitutional acts such as the federal health care legislation. We simply cannot put our faith in the federal judiciary to limit federal power.

As Thomas Jefferson said, nullification is the rightful remedy.

CLICK HERE to read about legislation in Texas that will do just that.

Get the New Book Today!

Did the Founders’ Constitution give Congress the power to restrict immigration?  Or was this a subject reserved to the states?

The question has come to the fore in recent months because of the controversy surrounding the Arizona immigration law.   My own search for the answer offers some important lessons about constitutional interpretation.

The Constitution, as readers of this website know, grants Congress only certain enumerated federal powers.  About half of these are found in Article I, Section 8, while the rest are scattered throughout other parts of the document.  Yet none of those powers explicitly mentions immigration.

This apparent silence has led some to suggest that immigration was left exclusively to state control.  However, the Founders gave primary control over foreign affairs to the federal government, and immigration (and emigration) was an important aspect of foreign affairs in the eighteenth century.   Also, Article I, Section 9, Clause 1, which prohibited Congress from prohibiting before 1808 the “Migration” of free people as well as “Importation” of slaves presupposed a congressional power to prohibit or restrict immigration after 1808.

But if Congress has power to regulate immigration, where in the Constitution was it granted?

Some writers have argued that it was part of Congress’s authority to “regulate Commerce with foreign Nations.”  For a while, I was misled into accepting this position.

As I thought about it more, I became troubled.  From reviewing hundreds of eighteenth-century sources, I had learned that “commerce” nearly always referred to the activities of merchants and certain closely-related activities.  These activities certainly encompassed travel for business purposes and travel by ship or other conveyance.  But constitutional scholar David Kopel pointed out to me that those activities did not include the fellow who hoofed it over the international border to live in the United States.  An immigrant of that description was not engaged in “commerce,” as the Constitution uses the word.

So I began another search to learn whether there was a federal power over immigration, and if so where it came from.  Eighteenth-century law provided the answer – not commercial law, but international law.

Article I, Section 8, Clause 10 of the Constitution granted power to Congress to “define and punish . . . Offences against the Law of Nations.”  I decided to dig more deeply into the eighteenth century legal sources to determine whether that might include authority over immigration.  Sure enough, it turns out that during the Founding Era, restrictions over immigration and emigration comprised a well-recognized branch of the “Law of Nations.”  In other words, Congress’s power to “define and punish . . . Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them.  An explanation appears in latest update of my book, The Original Constitution: What It Really Said and Meant .

Why is this constitutional detective story significant?  First, clarifies why the constitutional text assumes that after 1808 Congress could regulate “Migration” from foreign lands.  Second, it clarifies that Congress cannot use the interstate commerce power to bar non-commercial travel within the United States.  Third, it knocks one of the props out from under an argument that, however silly, is solemnly advanced by some “liberal” writers – that “commerce” included non-business travel, and therefore that “commerce” also included nearly all other human relationships.

Finally, this story underscores a point I explain for the layperson in The Original Constitution: When the Constitution is unclear, eighteenth century law offers us valuable trail marks toward the truth.

Rob Natelson, a leading scholar of the Founding Era, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado and Senior Fellow at the Goldwater Institute in Phoenix. He retired from the University of Montana earlier this year, where he taught Constitutional Law.

In the various lawsuits brought by states to challenge the validity of ObamaCare, an over-arching issue concerns the limit, if any, of Congress’ powers under the Commerce Clause.  However, there are more arguments in play.  One of them deals with Congress’ power to tax.  This issue has been discussed in Virginia vs. Sebelius by way of the federal district court’s Memorandum Opinion on Defendant’s (Sebelius’) Motion to Dismiss.

In the case, Virginia asserts that Congress is not Constitutionally-authorized to enact ObamaCare.  Sebelius filed a motion to dismiss against Virginia, on the grounds that Virginia’s complaint does not state a valid cause of action.  While the Commerce Clause issues are more widely-discussed, little discussion has been dedicated to the taxation issue which is equally important in the decision as to whether or not ObamaCare is Constitutional.

There is no doubt that Congress has the power to levy taxes.   However, as to the Commerce Clause, there are many who doubt that Congress, for example, has the power to direct that people must, pursuant to its Commerce Clause authority, put on both socks before putting a shoe on either foot.   If Congress cannot force people to do this pursuant to the Commerce Clause, then, perhaps it has another means at its disposal – this being its power to levy taxes.   So, the argument goes, based on a long line of cases from the U.S. Supreme Court.

Suppose Congress passed a law “levying a tax of $50.00 against each person, for each instance in which said person fails to don both socks before donning the first shoe.”   (Okay, I know this is a very hyperbolic example, but read on).  While such attempts to regulate would be, we hope, impermissible under the Commerce Clause, what about Congress’ power to tax?  After all, this hyperbolic measure is, indeed, a tax-raising mechanism.

This taxation argument is very much in play in the challenge to ObamaCare.   Its mandate assesses penalties on individuals who fail to obtain approved health insurance policies, and toward this end, it is being argued that it is a revenue-raising mechanism authorized pursuant to Congress’ power to levy taxes.

Throughout our history, there has been an on-going conflict in doctrines between Congress’ general power to tax and the limitations of its regulatory authority under the Constitution.   These competing doctrines are anything but novel.

In 1950, the Supreme Court issued its opinion in U.S. vs. Sanchez.   At issue was a federal tax on marijuana.   A transfer tax was imposed of $1.00 per ounce if the transfer was authorized in writing by the Secretary of the Treasury, and if the transfer was not so authorized, then, the tax was to be $100 per ounce.

The Sanchez opinion delves into the tension between Congress’ taxing power and the limitations of its regulatory authority.   Discussing this tension between the doctrines, the Court wrote:

It is obvious that [the statute], by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence the attack here rests on the regulatory character and prohibitive burden of the section as well as the penal nature of the imposition. But despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.

First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 1937, 300 U.S. 506, 513-514, 57 S.Ct. 554, 555-556, 81 L.Ed. 772. The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 1928, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.

In essence, the proposition was thus put forth that, even though Congress might not have authority to regulate marijuana pursuant to its Commerce Clause power, it has a more general power to tax.  And if the effect of the tax incidentally has a regulatory effect over something Congress may not regulate, this regulatory effect will not impair Congress’ general authority to levy taxes.  Thus, in essence, Congress has been deemed to have an indirect power to regulate through its power to prescribe tax policies.

However, compare the Sanchez case to U.S. vs. Butler, a 1936 case where the Supreme Court struck down the 1933 Agricultural Adjustment Act, noting that it created a tax for the purpose of regulating that which Congress had no power to regulate – namely intrastate agriculture (think “pre-Wickard vs. Filburn and the switch in time that saved nine”).   In Butler, the Court wrote:

In the Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432, and in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, this court had before it statutes which purported to be taxing measures. But their purpose was found to be to regulate the conduct of manufacturing and trading, not in interstate commerce, but in the states-matters not within any power conferred upon Congress by the Constitution-and the levy of the tax a means to force compliance. The court held this was not a constitutional use, but an unconstitutional abuse of the power to tax. In Linder v. United States, supra, we held that the power to tax could not justify the regulation of the practice of a profession, under the pretext of raising revenue.

Get the New Book Today!

These two opinions provide a general summary of the state of the law, as held by the Supreme Court, with regard to whether or not Congress may effectively regulate beyond its jurisdiction by using its taxing power.   The rule of law is:

• Congress’ power to tax cannot justify the regulation of matters beyond its regulatory authority under the pretext of raising revenue, and
• A tax statute by Congress will not necessarily fall because it “incidentally” regulates activities which Congress might not otherwise be empowered to regulate.

Confused?   Don’t be.  This is not rocket-science.  The language is clear – yes, even in both cases.   What is really happening is that the Supreme Court is making up sh….tuff as it goes.   You cannot have a Constitutional rule of law with inconsistent, flexible rules like these.

And so, I ask, why is it of any use to rely on anything the Supreme Court says?  There is no mysticism there.  No greatness.   No awesome enlightenment.  Just pure sh….tuff.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries, and everything in between. And, unfortunately, the Supreme Court has largely condoned and even encouraged such reprehensible legislative behavior.

How can they justify this? According to leading Constitutional scholar, Rob Natelson, they make two basic arguments.

The first argument was spun during the New Deal by a University of Chicago law professor. (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade. Instead, he contended, “commerce” included all gainful economic activities. Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor. He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

Both, however, are wrong – flipping the original meaning of the commerce clause on its head.

TURN THIS THING AROUND

In 2011, state legislative contacts close to the Tenth Amendment Center tell us to expect that a number of states will attempt to resist this federal overreach. The first? Virginia. Introduced – prefiled, that is – for the 2011 legislative session, is Delegate Mark Cole’s House Bill 1438 (HB1438), which:

Provides that all goods produced or manufactured within the Commonwealth, when such goods are held, retained, or maintained in the Commonwealth, shall not be subject to federal law, federal regulation, or the constitutional power of the United States Congress to regulate interstate commerce.

At first glance, a bill like this might not seem to be out of the ordinary, until one spends a little time thinking about how much of our current unconstitutional federal leviathan the feds have jammed down our throats while claiming “interstate commerce!” every single time.

From Obamacare to Cap and Trade to the Controlled Substances Act – and everything in between – there are literally countless examples of how the federal government claims the right to not only regulate, but control, prohibit, and mandate under its delegated power to regulate commerce – “among the several states.”

Get the New Book Today!

THE COMMERCE CLAUSE

If, like any legal document, the words of the Constitution (and its amendments) mean today just what they meant when it was signed, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It delegates to Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “to regulate” generally meant “to make regular” -that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of Virginia’s Instrastate Commerce Act addresses.

NULLIFICATION

Laws of the federal government are Supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are “unathoritative, void, and of no force” from the outset.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

When states resist, interpose, and nullify unconstitutional federal “laws” – this is not rebellion, it’s duty.

RECLAIMING INTRASTATE COMMERCE

A long train of improper judicial precedents and federal usurpations of power under Article 1, Section 8, Clause 3 are not supreme simply due to the fact they are outside the scope of power delegated to the federal government.

By introducing HB1438, Delegate Cole attempts to place Virginia in a position of proper authority while pressing the issue of state supremacy back into the public sphere.

In 1942 no state intervened or challenged the federal claim to regulate non-commercial intrastate activity in Wickard v Filburn. This landmark court decision claimed to give the federal government the power, under the guise of “interstate commerce,” to control the growing of a plant in one’s own backyard – and consuming it at home.

This ruling marked a reversal of precedent set over the course of more than 150 years where the federal courts had ruled against such loose interpretation. The federal government now claims authority – under the commerce clause – to control or ban what you grow and consume at home, to tell you how big your toilet can be, and that you can be fined for not purchasing a health insurance plan. Such powers are not what the founders and ratifiers gave Congress in the Constitution.

With the passage of a bill like HB1438, Virginia would become the first state to reject in one fell swoop the ludicrous and intellectually dishonest constitutional rationale that underpins so much federal activity, and reclaim the rightful authority to regulate commerce within its own borders.

*******

CLICK HERE to view the Tenth Amendment Center’s Model Legislation – The Intrastate Commerce Act

CLICK HERE – to view the Tenth Amendment Center’s Intrastate Commerce Act Tracking Page

Federal Health Insurance Mandates: Why You Can’t Oppose them and Support Federal Marijuana Bans at the Same Time.

Is there any limit to what the Commerce Clause allows Congress to do?   Let’s take a look at the Commerce Clause, which states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Though the clause has been extended by the U.S. Supreme Court in an almost continuous fashion since the Constitution was ratified, its 1942 decision in Wickard v. Filburn was a monumental extension.  In issue in Wickard was the ability of Congress to regulate how much wheat a farmer could grow, when the wheat was not going to be traded in the market and would be used for the farmer’s own consumption.  Filburn was prosecuted for growing 23 acres of wheat in the face of a federal statute allowing only 11.1 acres to be grown.   Filburn argued Congress had no authority to restrict how much wheat he could grow because the excess wheat he was growing was for his own use on his farm and not for sale on the market.  Thus, he claimed the excess wheat would never become involved in interstate commerce.

In holding that Congress did not exceed its authority, the Supreme Court stated:

One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.

(emphasis added).

Above, it is seen that regulating commerce has been interpreted to mean regulating things that “could affect” interstate commerce.   The Court ruled that excess wheat “tends” to find its way into interstate commerce, without any proof that the wheat in question actually does – much like assuming that since black markets tend to arise when government limits supply, Filburn was already in that class of persons who trade in black markets.   One would have to ask whether it is an appropriate standard of judicial review for our Supreme Court to assume guilt, rather than innocence.

However, the Court partly dodged its assumption of guilt by pointing out that even if Filburn was an otherwise law-abiding citizen, to the extent he grew his own wheat, he would not have to purchase what he needed from the open market.   Thus, the Court concluded, allowing many people to avoid price regulation by supplying their own needs would thwart Congress’ desire to maintain higher wheat prices.   Filburn’s lack of demand for wheat on the market would accordingly “affect” interstate commerce by the simple fact that he would have no need to make purchases from the market.

Incidentally, one can easily speculate that the federal mandate to purchase health insurance might be upheld on this reasoning – i.e., the absence of need for health insurance reduces demand for it.  Is this not true with respect to every product offered for sale by third-parties?

Gonzales v. Raich was a 2005 U.S. Supreme Court opinion which relied heavily on Wickard.  Raich relied on California’s laws permitting marijuana use for medicinal purposes, which also allowed her to grow marijuana for her personal consumption.  The federal government refused to recognize that California’s laws afforded her any rights to engage in such activities.

The Supreme Court wrote:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses …” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets….

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.

Interestingly, the issue in Raich was not one of price controls.  Instead, it concerned an outright ban.   Nobody was arguing the price of marijuana should be higher and Raich should go out on the open market and purchase it.

So, what remains is the Court’s observation that regulation by the federal government was proper because of “the likelihood that the high demand in the interstate market will draw such [home-grown] marijuana into that market.”  Here, it can be seen that the Court’s opinion inescapably hinges on its assumption that Raich would turn criminal and begin selling her home-grown marijuana in the interstate market.

In short, what can be concluded from the similarities between Wickard and Raich is that it is enough to justify federal intrusion into state concerns if something has the potential to become involved in interstate commerce, and not whether it actually does.  Moreover, Raich makes it clear that in the face of federal regulation of interstate commerce, one who possesses items against the will of the federal government will inevitably become a criminal.   Thus, a person’s potential to become a criminal makes him a criminal.

Justice Thomas vigorously dissented in Raich, stating as follows:

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States,” Art. I, § 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value….

This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “`the production, distribution, and consumption of commodities.’” Ante, at 25 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 (O’CONNOR, J., dissenting). 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.” The Federalist No. 45, at 313 (J. Madison).

(emphasis added).

In Thomas’ dissent, the emphasized language is the exact language relied upon by opponents of the new health insurance mandates.   Simply put, opponents argue that the insurance mandates are Unconstitutional because the decision not to purchase insurance is not the act of engaging in “economic” activity; it is merely the act of one’s existing and deciding not to engage in a particular economic activity.

In conclusion, Raich involved an issue, legalized marijuana, which a great number of people oppose.   For that reason, it is common to see many advocates for less government who have the opinion that Raich was properly decided.   They advocate for less government but oppose legalizing marijuana.

For those who are within the foregoing category, a serious conflict arises.   To support the decision in Raich is to admit that the federal government does, indeed, have the authority to force purchases of health insurance and to require compliance with a myriad of mandates with which such people would normally disagree.

Some might argue that Raich actually engaged in behavior, i.e., growing plants, thus, laying the grounds to allow federal regulation over her.  However, the same could be said for any activity.   For example, consuming alcohol and fast food, as well as working hard, are activities that, under the same logic, should be subject to regulation by the federal government, e.g. “Any person who consumes alcohol or fast food, or who works hard, shall be required to maintain health insurance meeting the minimum requirements of this Act.”

It seems there are only two plausible ways in which to deal with this conflict in the context of the limits, if any, on the federal government’s authority to regulate commerce among the states.   The first is simply not to concern one’s self with the rules of law and to just argue points based on an inconsistent reasoning.  The second is to gain a higher appreciation for why the rules of law were crafted as they were and to be willing to concede to proper reasoning.

Using the principles of law relied on by the federal courts to maintain a federal ban on marijuana use, one cannot be both:  (1) against the federal government’s new health insurance mandates, and (2) against a state’s right to legalize marijuana use.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

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.”

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 “convenient”. 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 people”!!! 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…

**************

(“…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