What We Want – Part XI

By: Richard A. Correa Sr. SGT RIARNG, Retired

It is hard to determine which clause of the US Constitution is the most abused. The masters of the federal behemoth seem to take the most obscure parts of this great document and twist them so much it is almost impossible to understand what the original purpose of them was. However, if one is looking for the most misinterpreted and abused clause of the constitution surely the interstate commerce clause would be in the top ten.

As we are no longer taught that the United States of America is a compact between free and independent nations which created an agent to represent them as a whole to the rest of the world, and an impartial ‘referee’ to settle disputes among them, we no longer view the constitution from the correct perspective. Because of this it has been easy for the activist (progressive/socialist/Marxist) judges to manipulate the meaning of the interstate commerce clause into a license for the federal government to do things within the states that it has no real authority to do.

The interstate commerce clause is Article I, section 8, clause 3 of the constitution and reads as follows:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

It is the clause in the constitution that gives congress the power to make laws, lay tariffs and import quotas for the imports from other nations. The last two segments of it, and among the several States, and with the Indian Tribes, exist so congress can keep the trade between the states fair and unbiased and to regulate what people within the states are allowed to trade with the Indian tribes.

We scarcely think about it today but before the constitution each state had laws that laid tariffs on goods manufactured in a different state that were ‘imported’ into it. They also levied taxes and established quotas on goods coming into them from the other states to give locally manufactured goods an advantage over the ‘imported’ goods with the buying public. Add in other regulations not germane to our discussion and it made it very difficult for goods made in Massachusetts to be sold in Connecticut.

The ratification of the US Constitution changed all of this. Under it selling the goods made in one state in all the others became a simple process that allowed the economy of all the states to thrive and the entire union prospered resulting in the economic superiority these United States enjoyed until the 1980s.

It should be noted here that all governments seek to control all levels of the lives of the people that live under them. It is the natural tendency for this to happen not for evil intent, but for the good of all. The argument is simply ‘we’ll be able to protect you from ‘X’ if you give up a little of your freedom so the government can do ‘Y’’. The state and federal governments of these United States are no exception to this rule. A good example is the provision in the Patriot Act that allows the NSA to monitor all private international phone calls. ‘Just give up a little of your right to privacy and we’ll be able to catch the terrorists before they can hurt you’.

The problems with this are:

1)    When you give up some of your rights to solve a problem, once the problem is solved the government does not give back what you gave up

2)    Once agents of the government have this power they will abuse it to protect you from yourself

3)    If you keep giving up a little of your rights when ever there is a problem to solve eventually you have no rights left

So whenever the politicians in the state or federal government say ‘give up this little piece of your rights and we’ll be able to save you from ‘X’’ remember what Ben Franklin said:

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.1

But I digress.

Today, thanks to activist judges and a congress that only respects the parts of the constitution which they can misuse to enhance their own power, the interstate commerce clause has been ‘mutated’ into a virus that affects the day-to-day activities of all of us. Sadly, we have become so used to this we don’t even question the constitutionality of the decisions made by these judges or the ‘laws’ passed by the congress. The absurdity of this boggles the mind.

For example, in 1941 Mr. Roscoe C. Filburn, a farmer in Ohio, exceeded his ‘quota’ the federal government set on him for his winter wheat crop. Mr. Filburn used the wheat to feed is farm animals, to make bread and other consumables used by his family and to sell locally. The Department of Agriculture levied a fine on Mr. Filburn of $117.00 because he had exceeded his quota of wheat. Mr. Filburn refused to pay the fine so the Department of Agriculture put a lien on his farm. In reaction to the governments’ actions Mr. Filburn filed a lawsuit against U.S. Secretary of Agriculture Claude R. Wickard in federal district court. Mr. Filburn won his case in the district court, so the federal government appealed to the United States Supreme Court.

In its’ ruling the Supreme Court stated:

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply . . . That [Filburn’s] own contribution to the demand for wheat may be trivial [very small] by itself is not enough to remove him from the scope of federal regulation where, as here, taken together with that of many others similarly situated, is far from trivial . . . Home-grown wheat in this sense competes with wheat in commerce . . . Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing [the act’s] purpose to stimulate trade . . . at increased prices.2

The court further stated:

Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is . . . not material for purposes of deciding the question of federal power . . . But even if [Filburn’s] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.3

The Supreme Court overturned the lower courts ruling and ruled in favor of the government. In essence, the court ruled that the federal government can dictate how much of anything a person can grow on their own property for their personal use and, if carried to the logical conclusion, keep a person from growing anything for personal use on their own land.

The most recent ruling on this matter is as distressing as Wickard v. Filburn. Though it concerns the growing of marijuana for personal use the logic of how the court got to its’ decision is important to the discussion.

When California passed its’ medical marijuana law in 1996 Diane Monson began growing marijuana to alleviate a medical condition she had. She was following her doctors recommendation and as far as can be determined abiding by the laws of the state of California. The DEA raided Ms. Monsons’ property and seized her marijuana. In October of 2002 she filed suit against then Attorney General John Ashcroft and former DEA Administrator Asa Hutchinson in federal district court. Though the plaintiffs lost in the district court they appealed to the 9th Circuit Court of Appeals which decided in their favor, 2-1 on December 16th, 2003. The federal government appealed to the US Supreme Court which ruled on June 6th, 2005 that under the Commerce Clause of the United States Constitution the Congress may ban the use of marijuana even where states approve its’ use for medicinal purposes. What makes this particularly disturbing is the following ‘analysis’ by the court:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity4

If you follow this line of reasoning to it’s logical conclusion the congress can pass a law, which the executive branch will enforce, that prevents you from knitting sweaters for your family because you might give one to a neighbor which interferes with interstate commerce. Or, the congress can make it illegal for you to do your own tune-ups on your car because you might help a neighbor tune-up his car which would have a negative impact on interstate commerce.

If this sounds to absurd to you remember it was under the interstate commerce clause that congress passed the ban on possession of a firearm within a ‘school zone’ denying those that live near a school their second amendment rights. The argument used for this law was that a child being intimidated by someone possessing a firearm, or injured, or killed by that someone, has a negative impact on interstate commerce which makes it legitimate for congress to pass, and the executive branch to enforce, such a law.

One may legitimately ask ‘do these Supreme Court decisions adhere to the principles espoused by the founders’? In Federalist number 45 James Madison said:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined.5

It appears that the Supreme Court, by way of its’ arguments, is in opposition to the father of the constitution. This is a situation that can only come from a progressive view of the constitution.

Alexander Hamilton also addressed the idea of federal encroachment on the internal authority of the states in Federalist number 17:

The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the Foederal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendour of the national government.6

It is clear from Hamiltons’ above statement that the idea the federal government would extend its’ reach to this level of control of the people is completely foreign to the intent of those that wrote the constitution. Hamilton also wrote of a self correcting condition built into the federal system. In the same essay Hamilton wrote:

But let it be admitted for argument sake, that mere wantonness and lust of domination would be sufficient to beget that disposition, still it may be safely affirmed, that the sense of the constituent body of the national representatives, or in other words of the people of the several States would controul the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities, than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence, which the State governments, if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us, that there is an inherent and intrinsic weakness in all Foederal Constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty.7

From this it is clear that the founders intent was that if the federal government should usurp this much power that the sates, supported by the people, would redress the imbalance and restore the power stolen by the federal government to where it belongs, in the hands of the states and the people.

Thomas Jefferson said in a statement on this topic:

To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.

So it is clear that the federal government, in particular the congress, was never to be able to attain this level of control. The US Supreme Court has granted to the Congress power they have no authority to give. This means they have stolen that power from the states and the people.

It is almost impossible to say how much better off you would be if this had not happened. The myriad horde of federal regulation that imposes themselves on our lives would certainly be less if we the people stood up to the federal beast and empowered our state governments to stand with us so we could rein in this abuse.

What do we want? We want the US Supreme Court to correct these misinterpretations of the power entrusted to it and to the congress, and we want the congress to cease legislating in areas it has no authority to legislate in. It is long past time for the federal government to behave itself.

1 Benjamin Franklin, Historical Review of Pennsylvania, 175, US author, diplomat, inventor, physicist, politician, & printer (1706 – 1790)

2&3  Wickard v. Filburn, 317 U.S. 111 (1942)

4 Gonzales v. Raich (previously Ahscroft v. Raich), 545 U.S. 1 (2005)

5 James Madison, Federalist, no. 45, 308—14

6 & 7 Alexander Hamilton, Federalist, no. 17, 105—8

8 Quote attributed to Thomas Jefferson source unknown.

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