Home > Uncategorized > Quick Fix: Commerce Clause

Quick Fix: Commerce Clause

Pass the following amendment to the constitution:

“The power of the federal government to regulate interstate commerce as provided for in Article 1, section 8 shall be limited to the power to strike down laws passed by the states which it deems harmful to interstate commerce.  For this power to apply, such a law must be clearly designed for the purpose of affecting interstate trade.”

No four words have caused more trouble in the history of America than “and among the several states.”  I think it is clear to any reasonable person who looks into it that the original intent of the commerce clause was not to give the federal government the power to do anything they wanted as long as it had some effect on interstate commerce.  Here is what it says in article 1, section 10.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

This clearly identifies the reason for vesting in congress the power to regulate interstate commerce.  It was to prevent states from constructing trade barriers and engaging in other mercantilist “beggar thy neighbor” policies.  This is what Madison says of the power in the Federalist Papers (#42).

…without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual.  A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.  Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.  We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.  To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbor, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade.

He then goes on to illustrate some examples of European nations with provisions ensuring free trade between their individual jurisdictions.  Surprisingly there is no mention of  minimum wage laws, labor unions, farm subsidies, or healthcare.  For about a hundred and fifty years the government used, and the courts interpreted the commerce clause in a way mostly consistent with this intent.  In fact notice that in 1919, congress passed a constitutional amendment preventing “the manufacture, sale, or transportation of intoxicating liquors.”  Why don’t we have a constitutional amendment outlawing cocaine or marijuana?  Now we just pass a law when we want to take a liberty away.  So what happened?

The New Deal happened of course.  In 1936, during the depths of the great depression, the progressives got a sweeping popular mandate with the reelection of FDR.  They were using this to pass all sorts of progressive policies.  Trouble was, the court was striking them down, just because they were unconstitutional.  Roosevelt wasn’t very happy about that so he threatened to pass a bill allowing him to appoint an additional justice for each one over 70.5.  He said this was to help the court which was moving to slowly because there were too many old people on it.  Miraculously, he never went through with this because right after he brought it up, the court decided that maybe the federal government did have the power to do all the stuff he wanted.  Of course they had to come up with some constitutional justification for this and in many cases the commerce clause was the best they could do.  Here is a brief timeline.

May 27th 1935: On a day deemed “black monday” the court announced 3 unanimous decisions against the administration including Schechter Poultry Corp. v. United States, in which the court found that “…the poultry at issue in the case, though purchased for slaughter interstate, were not intended for any further interstate transactions after Schecter slaughtered them. Thus, the poultry were outside of Congress’s authoritative reach unless Schecter’s business had a direct and logical connection to interstate commerce.”

May 31st 1935: Roosevelt remarks that the Schechter decision has “relegated [the nation] to a horse and buggy definition of interstate commerce”.

May 18th 1936: Court determines that mining is not commerce in Carter v. Carter Coal Company.

Feb 5th 1937: Roosevelt proposes the Judiciary Reorganization Bill.

March 29th 1937:  On a day deemed “white monday,” (I wonder who came up with these names…) the court handed down three decisions in favor of new deal legislation.

April 12th 1937: In National Labor Relations Board v. Jones & Laughlin Steel Corporation, the court decided 5 to 4 in favor of the administration, stating  “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”

And that was it.  In a span of 2 years they wiped out almost every limit on federal power to “regulate” our actions.  Since then there hasn’t been an amendment to the constitution granting additional powers to the federal government because it hasn’t been necessary, they just site the commerce clause and judges don’t even have to consider the original intent of the framers, they merely reason from the precedent established by previous judges.  The only hope against this is that power still ultimately resides with the people.  The proper channel for correcting a misguided judiciary branch is to provide them with clearer language to consider and this is what I propose.  We might also want to put a prohibition on court packing in there.

Categories: Uncategorized
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  1. August 22, 2010 at 4:27 am

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