Thomas Dissents: It’s All Unconstitutional

Oh, how far we’ve deviated from our Founders in just over 200 years.

The entire country is pouring over an incoherent, internally contradictory, ill-conceived and politically motivated decision by Chief Justice Roberts, which grants Congress the power to regulate anything that moves and the power to tax anything that moves and anything that doesn’t move.  Yet, many conservatives are running around cheering this as a dictum of enumerated powers and limited government.  Wow – James Madison must be rolling over in his grave.


If we take the reasoning of Roberts to its logical conclusion, Congress would be able to coerce individuals to buy broccoli once a week, so long as they levy a tax on those who fail to comply with the law.  Putting aside the facial absurdity of Roberts’s tax power jurisprudence, his opinion on the Commerce Clause is nothing to cheer.  While Roberts clearly stated that the Commerce Clause does not grant the federal government the right to regulate inactivity (although it can evidently tax inactivity), he obliquely upheld their authority to regulate any activity under that misconstrued clause.

Amidst the garrulous analysis from the conservative pundit class on the Roberts decision, there is a one-page dissent from Justice Thomas (in addition to his joint dissent with the other 3 conservatives) that has been overlooked.  The joint dissent with Scalia, Alito, and Kennedy focuses primarily on taking down Roberts’s tax powers jurisprudence and Ginsburg’s opinion on the unlimited power of the Commerce Clause.  Thomas felt there was a need to add one point.  Not only was Roberts way off the reservation by rewriting this law as a tax and concurrently expanding the tax power of Congress, he was also wrong about the Commerce Clause.

Take a look at this paragraph from Thomas’s dissent (last two-pages of pdf):

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545


U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morri­son, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.

Justice Thomas is hearkening back to the Founders.  Not only is every word of Obamacare unconstitutional and an anathema to every tenet of our founding, most of the other programs created in recent years are as well.  The fact that Roberts said the Commerce Clause and the Necessary and Proper Clause don’t apply to inactivity is not a victory for constitutional conservatives.  The implicit notion that the federal government can regulate any activity is appalling to conservatives.

Here’s what James Madison had to say about the Commerce Clause in a letter to Joseph C. Cabell in 1829:

For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it 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, in which alone, however, the remedial power could be lodged.


Madison is bemoaning the expansion and misconstruing of the Commerce Clause circa 1829!  One can only imagine what he would say about our entire domestic policy in 2012.  The Commerce Clause was never meant to be used as a tool to grow the federal government.  Quite the contrary, it was designed as a safeguard against the abuse among the states.  Anyone with a shred of intellectual honesty knows that the federal government was never vested with the power to regulate or tax virtually every activity of the individual.

Some Republicans are going around declaring that “although the law is constitutional, it is terrible policy.”  That’s dead wrong.  It’s not constitutional at all.  We just lack any recourse to challenge the law on constitutional grounds at this point.

The reality is that not only is Obamacare unconstitutional, almost every discretionary department, welfare program, and entitlement program is unconstitutional.  Obviously, we cannot repeal each one overnight and must deal with them prudently, but we must not buy into the notion that the prevailing view of federal power over the past 80 years is sacrosanct.  It’s not.  We get our rights from God, not from the government, and not even from the Constitution.  The Constitution grants the federal government a few enumerated powers.  We must not let the views of one unprincipled man in a black robe – or even decades’ worth of misguided court decisions – abrogate our founding documents.

James Madison would be proud of Clarence Thomas.

Cross-posted from The Madison Project



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