Diary

Tragic and dishonest distortion of the Commerce Clause

The impressive sounding Commerce Clause has been used for roughly 80 years to steal our liberty and allow the exponential growth of federal power. That any judge ever assented to the bludgeoning and torture of a simple sentence in The Constitution is regrettable, but that conservative lawyers have aided that process through timidity is a travesty.

To begin let’s take a look at the infamous Commerce Clause. Its location in The Constitution is Article 1, Section 8, Clause 3. It is simply drawn and easy to understand.

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is the Commerce Clause (CC) in its entirety. There are mildly qualifying clauses that touch on the CC in Section 9 but they serve to LIMIT congressional power not expand it.

Did you notice what the CC does not say. It does not say that Congress can regulate commerce. “What”? you shout, “Are you crazy”? “The Commerce Clause does not give Congress the power to regulate commerce”?  And my answer is , no, not explicitly.  Read the clause again :

The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Can you see it now? That simple clause certainly does not give Congress power over all commerce! How do I know? Because if the Founders had wanted to give Congress sweeping power over all commerce they would have just written  “Congress has the power to regulate all commerce”? But they didn’t use those words. Instead they identified three types of commerce that Congress “shall have the power to regulate”.

1. Commerce with foreign Nations

2. [Commerce] among the several States

3. [Commerce] with the Indian Tribes

Its so simple and plainly written. Commerce between individuals was NEVER intended to be covered by the Commerce Clause.  The non-mysterious goal of each sub-clause of the Commerce Clause was:

1. Ensure that the Federal Government could regulate commerce with other countries. This is an obvious need that is tied directly to national security.

2. Ensure that the nation would form a single market as opposed to the various states setting up trade barriers amongst themselves. This again is tied to national stability and security.

3. When this Constitution was written  “Indian Tribes” were still quite potent, often were aligned with foreign powers, and thus represented a significant threat to national stability and security.

So it can be understood that what the founders were concerned with here was not the ability to regulate what we as a free people buy and sell, but rather the power to set national policy in areas that involve other governmental entities whether foreign, state, or tribal.

If you won’t take my word for it then let us turn to the words of James Madison writing in Federalist #42. I know it is a bit long but I beg of you a few minutes time to hear Mr. Madison speak to us across the ages:

The powers included in the Third class are those which provide for the harmony and proper intercourse among the States.

Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that 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 tranquility. 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 neighbors, 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. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.

It is astonishingly clear that regulating commerce between individuals was not the intent behind the Commerce Clause.  Read again Madison’s remarks regarding “Indian Tribes”:

The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.

It is obvious from Madison’s remarks that any controversy or confusion among the “federal councils” was not along the lines of modern day argument regarding the Commerce Clause.

Consider also these lines:

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls.

Notice that Madison is addressing the trade between States, not trade or commerce between individuals.  His concern is with one state taking advantage of another via tariffs, tolls, etc.

Madison’s choice of words is also telling here:

I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes;

Notice that amid all the controversy of the Constitution that the Federalist papers were meant to help calm, Madison views the Commerce Clause as calling for only a “cursory review”. A clause that did cause quite a lot of uproar at the time was the so called “Necessary and Proper Clause”. It was realized that this clause contained the seed of unlimited federal power, yet if not the “Necessary and Proper Clause” then what? For many years both clauses were largely applied with restraint and wisdom. When a one sided interpretation of the Necessary and Proper Clause was misapplied to a dishonest reading of the Commerce Clause, the slippery slope became an all too evident danger to our liberty.

I can come to only one conclusion after reviewing the foregoing and looking back at all that has been done by the Federal Government over the past 80 years:  We the people have been badly snookered. We have been and continue to be sold out by our elected representatives, our judiciary, and the vast majority of the members of the bar. Complicit in this has been our media and both major political parties. And yes we too, We The People, bear a heavy responsibility for not being better informed and quicker to object when our freedoms have been lessened or removed.

The Founders gave us a Republic based on individual responsibility and individual liberty. Over the last eight decades we have allowed it to be taken away piece by precious piece.