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.”

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?!

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With particular respect to Obamacare, I couldn’t find one single court ruling in the history of the United States which remotely endorsed the right of the federal government to mandate that every person purchase a product or service or be fined for not doing so. Not one! And though it’s difficult to imagine that even a liberal Supreme Court could clear-headedly and in good conscience rule in favor of this mandate, I wouldn’t underestimate the corrosive influence of judicial activism and congressional overreach which have characterized the rule of law in these United States over the last 100 years. And should the Supreme Court uphold Obamacare, which is more likely than not, then Americans must carefully recall and take to heart these words in the Declaration of Independence:

“…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 Permission to reprint in whole or in part is gladly granted, provided full credit is given

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