The misuse of the “Commerce Clause” is one of the most frequent attacks on the Constitution of the United States of America that our federal government utilizes. It has been used to justify car regulations, gun free zones, and Obamacare among other things. This simple clause has been perverted to push an agenda of big government corruption, control, and cronyism. What originated as a simple idea has morphed into one of the most intrusive excuses government uses for its unconstitutional activities.
The Commerce Clause is part of Article 1 Section 8 and reads: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”
This has a clear and simple meaning. Commerce is defined as “an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter or by purchase and sale.” It is trade. Any commerce between the states is subject to the federal government, and if a state has an issue with another state, it is the proper place for the federal government to decide the issue. That is it. The free flow of goods and services across state lines is important to the health and vitality of this country.
What the state does within its boundaries is not rightfully subject to the Commerce Clause. By giving the federal government a say in the interstate commerce between the states, it eliminates most of the motive for one state to take advantage of fellow states because they know that these actions will not be tolerated. If this was left up to the individual states, then problems could arise. This was the case in early America.
Our federal government now says that it can now regulate any activity which has a substantial impact on the economy. This has come to include the regulation of anything that crosses state lines and the process which created the product or service. It has also come to include the means by which items are moved across state lines. Trains, buses, cars, and trucks are now regulated, and the justification is the commerce clause.
In a spectacular repudiation of common sense and the Constitution (not the first nor the last time), the Supreme Court in 1943 ruled in Wickard v. Filburn that a farmer who had grown too much wheat in violation of the Agriculture Adjustment Act of 1938 was guilty of interfering with interstate commerce. The original idea that farms could be limited in their production came from the commerce clause.
But, in this case, the farmer, Wickard, had grown an extra 12 acres of wheat, not for resale but to be used to feed his own livestock. It was the court’s decision that his growing of this wheat affected the market because it kept him from having to use the market to purchase the grain he needed. This was where the idea of Congress having power over any activity that has a substantive effect on the economy was born.
This decision was cited in the majority decision (not of Roberts, who wrote his opinion alone, but the rest of the court’s majority) authored by Ruth Bader Ginsburg in the case of NFIB v. Sebelius where it upheld the individual mandate of The Affordable Care Act (Obamacare). The “logic” used was that people not buying insurance detrimentally affected the market by their omission from it and could be fined to encourage them to participate. So, instead of regulating commerce, our government dictated how individual Americans are supposed to act and spend their money. This is a result of interpretations of interpretations by the courts giving new and unsupported powers to the federal government.
Another travesty that most do not know about is the relationship between gun free zones and the commerce clause. In 1990, Congress passed the Gun Free School Zones Act citing the power of the commerce clause to do so. This was found to be unconstitutional in the landmark Supreme Court decision, United States v. Lopez.
The government argued its case by citing that the power to regulate guns in a school zone was important because the possession of a firearm in a local school zone substantially affected interstate commerce because violent crime would raise insurance costs, and those insurance costs affect commerce. They also stated that violent crime reduces individual’s desire to travel to high-crime areas within the country, thus affecting commerce.
Finally, they stated that crime threatened the ability for children to learn, thus reducing national productivity and negatively affecting commerce. Thankfully the Supreme Court got this decision right, but it shows how pliable the commerce clause is now in the hands of the Congress, and it demonstrates how Congress manipulates the Commerce clause to have a much broader meaning than our founders or their words intended.
Back to the structure of the commerce clause and the use of “and.” Does it make sense to think that our government can limit the production of wheat from a foreign farmer because it affects commerce here in the United States? Is it logical to believe that our Congress can make laws governing the proclivity of guns in a foreign country because it will affect commerce here? That is the power of the “and” in the clause. Anything that is argued that gives Congress the power over the states through the commerce clause must be just as applicable to foreign nations.
The original intent of the commerce clause is plain to see for anyone who knows our history. During the time when the Articles of Confederation were in place, some states erected trade barriers to their fellow states. The purpose of the commerce clause was to eliminate these trade barriers and create free trade among the states. What it has morphed into in the interim is fully repulsive and not supported by the Constitution.
I previously mentioned Wickard v. Filburn. How did we get to the point in this nation that the federal government can tell farmers how much of a crop they can grow and also compensate them for not growing crops? How can the federal government get involved in the internal workings of an individual farm and tell the farmer what to grow and in what quantities?
Where is this found in the Constitution?
It is not found in the document. It is the use of case law and interpretations of interpretations which have led away from its clear and simple meaning. A simple statement concerning the regulation of commerce among the several states has morphed into the federal government telling farmers how to farm. It has morphed into the federal government telling car manufacturers how to make cars. It has turned the federal government into the national toilet dictator. The federal government tells you what light bulbs you are ALLOWED to use and what kind of food you are ALLOWED to eat. The federal government now tells families how much of their lifetime earnings they are ALLOWED to give to their descendants through the inheritance taxes. Where is ANY of this found in Article 1 Section 8? None of it is found there.
This, and most of what Congress, the President, and the Supreme Court does nowadays is unconstitutional. Why do the American people allow this activity? The Declaration of Independence offers an answer: ” All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
For a few, that threshold is already attained. For most others it has not yet been reached. Let us hope we can start to effectively address the challenges we face as a nation before extreme measures must be taken to protect our way of life.
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