June 18, 2004

If you have ever asked yourself the above question, the answer is---it has been replaced by Article I, Section 8, Clause 3 of the Constitution for the United States, commonly known as, the Commerce Clause. This provision grants Congress the power “[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” During the past 70 years Congress has used this clause to circumvent the limitations placed on its powers by the Constitution. That body has taken the phrase---“to regulate commerce…among the several States,” and transformed it into the “constitutional” basis for a multitude of federal regulatory schemes for everything from civil rights to gun control. It has also been used to unconstitutionally expand the federal government’s criminal jurisdiction over the people of the several States. In addition, the expansion of federal power through the Commerce Clause has all but nullified the Tenth Amendment.

In 1973, Congress authorized publication of a book that was to be an analysis and interpretation of the Constitution. The part concerning the Commerce Clause began by stating:

This clause serves a two-fold purpose, it is the direct source of the most important powers which the Federal Government exercises in peacetime, and except for the due process and equal protection clauses of the Fourteenth Amendment, it is the most important limitation imposed by the Constitution on the exercise of state power.

If this is the important constitutional power the federal government exercises in peacetime, then why were the Founders and the American people unaware of this power when the Constitution was being proposed and debated? And why, if this clause is the most important limitation on state power, is it not part of Article I, Section 10 that enumerates all of the limitations imposed on state power by the Constitution?

In his 1913 book, The Framing of the Constitution, Max Farrand explained, in part, why this provision was incorporated into the Constitution:

Pending a grant of power to congress over matters of commerce, the states acted individually. A uniform policy was necessary, and while a pretense was made of acting in unison to achieve a much desired end, it is evident that selfish motives frequently dictated what was done. Any state which enjoyed superior conditions to a neighboring state was only too apt to take advantage of that fact. Some of the states, as James Madison described it, ‘having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on.’ The Americans were an agricultural and trading people. Interference with the arteries of commerce was cutting off the very life-blood of the nation and something had to be done.

In Federalist essay No. 45, Madison asserted that the Commerce Clause was a harmless power that no one really opposed:

The regulations of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

Considering the heated debates that raged in the Federal Convention concerning the extent of the powers being delegated to the federal government, it is inconceivable that there were no apprehensions or serious opposition to a clause that allegedly granted the federal government unlimited regulatory power over every aspect of American life.

The true purpose of the phrase---“to regulate commerce…among the several States,” was to insure free trade among the several States. This provision granted Congress the power to make regular, or normalize, commerce between individual State and individual State. It did not grant Congress the power to control individuals or private business engaged in commerce. This fact is substantiated by the 13^th Amendment passed in 1865 (banning slavery), the 18^th Amendment passed in 1919 (banning intoxicating liquors), and the 21^st Amendment passed in 1933 (repealing the ban on intoxicating liquors). All of these Amendments involved commerce, yet Congress realized that it took a constitutional amendment before it had the power to legislate in these areas.

With the aid of the federal judiciary, Congress has usurped the original intent of the Framers and expanded the power of the federal government to unparalleled heights. Under the umbrella of the Commerce Clause, the federal government is obliterating the system of limited government established by the Constitution and transforming itself into a government of unlimited power.

The emergence of the Commerce Clause as a “new” source of federal power was addressed in a speech by Alfred Clark before the Oregon Bar Association on September 2, 1943. Mr. Clark stated, in part:

Today, in a very real sense, law no longer governs the American people. They are governed by regulations, orders and directives issued by one or the other of our multiple Federal bureaus. I am not now referring to war regulation and the like, but to conditions existing before the war, and which, unless the trend is checked, are likely to continue and to intensify after the war is over.

This has been accomplished, to a very large extent, through a new and, in many aspects, a startling interpretation of the commerce clause of the Federal Constitution, which is now being used to obliterate the States and convert our system into a highly centralized form of government, exercising uncontrolled police power in every State, over all, or nearly all, local affairs and industries.

After discussing several decisions by the Supreme Court, Mr. Clark explained the chain of causation, as defined by the Court, to be followed in determining what constitutes interstate commerce. He used the following example to illustrate the danger of the Court’s decisions:

This may sound to you like a soporific nursery rhyme. Not so. On the contrary it is modern judicial logic…Indeed, if Junior decides to emulate Popeye and insists upon a double portion of spinach at the dinner table, thus increasing the demand on the market, and lessening the supply to meet the demand, his act may so affect interstate commerce as to bring him within the ambit of Federal control.

As stated by Mr. Clark, consuming food, according to decisions by the Supreme Court, is sufficient to bring an individual within the scope of federal control. The activity simply has to have the “potential” to affect interstate commerce. The implications of this unconstitutional usurpation of power on individual freedom are staggering. Under the Court’s Commerce Clause rulings, the simple act of going for a walk could subject an individual to federal regulatory control because being absent from the house could cause an individual to miss a solicitation for a commodity which it turn could affect the flow of commerce.

If this sounds like paranoid hysteria, then consider the following statements by Supreme Court Justice Clarence Thomas from the 1995 case of U. S. v. Lopez:

We have said that Congress may regulate not only ‘Commerce…among the several states,’…but also anything that has a ‘substantial effect’ on such commerce. This test, if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life.

Under the “substantially affects” interstate commerce standard adopted by the Court, Justice Thomas noted that “[c]ongress can regulate whole categories of activities that are not themselves either ‘interstate or commerce.’” All Congress has to do is declare the activity it seeks to regulate has a “substantial effect on interstate commerce.” If you read legislation pending in Congress, you will find this is precisely what they are doing.

On May 5, 2004, legislation was introduced in the House of Representatives entitled the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2004.” This legislation is part of the federal government’s plan to seize total control of the health care industry. Since that government does not have any general constitutional authority over health care or the medical profession, it has to invoke the Commerce Clause. This proposed legislation states, in part:

Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers. [Bold added]

In the Lopez case referenced above, Justice Thomas also asserted that the Court’s expansion of federal power through the Commerce Clause comes “close to turning the Tenth Amendment on its head.” What did he mean by that statement? Since its adoption in 1791, the Tenth Amendment has been viewed as an impediment to legislators who attempted to expand the powers of the federal government beyond those granted by the Constitution. The Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This Amendment reserves every power not granted to the federal government to the States or the people. It only applies when the federal government attempts to exercise a power not granted by the Constitution. It cannot be invoked to prohibit the federal government from exercising a legitimate constitutional power. Since the Commerce Clause is a granted power, it is not affected by the Tenth Amendment. By using the federal judiciary to re-define and expand the scope of the Commerce Clause, the federal government has successfully circumvented the additional limitation placed on its powers by the Tenth Amendment.

The federal government has also used the Commerce Clause to establish a large number of federal criminal statutes. In fact, the majority of all federal criminal statutes find their origin in the judicial perversion of the Constitution through the Commerce Clause. Congress simply declares the activity it seeks to criminalize has a “substantial adverse effect on interstate commerce,” and, through a stroke of the pen, the federal government magically expands its criminal jurisdiction over the people of the several States.

An example of this usurpation of power can be seen in legislation introduced on January 7, 2003, by Congresswoman Shelia Jackson-Lee of Texas. The legislation, entitled the “Hate Crimes Prevention Act of 2003,” would expand the federal government’s criminal jurisdiction over the American people.

Congress finds that---

[T]he incidence of violence motivated by the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability of the victim poses a serious national problem…such violence affects interstate commerce in many ways, including---by impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence…by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment or participating in other commercial activity…perpetrators cross State lines to commit such violence…instrumentalities of interstate commerce are used to facilitate the commission of such violence…such violence is committed using articles that have traveled in interstate commerce…the problem is sufficiently serious, widespread, and interstate in scope to warrant Federal intervention. [Bold added]

If the Founders had intended the federal government to have interstate criminal jurisdiction or jurisdiction over crimes that “affect interstate commerce,” they would have incorporated them into the Constitution. In addition, there would be a record of the debates in the Federal Convention, the State Ratifying Conventions and the Federalist Essays on this so-called power. The author, after reading all of the Federalist Essays and the debates in these proceedings, was unable to find a single sentence that supports any assertion that the federal government was granted interstate criminal jurisdiction through the Commerce Clause.

There is another fact that disproves the contention that the federal government was granted interstate criminal jurisdiction over the American people. Article IV, Section 2 of the Constitution contains a provision that when an individual commits a crime in one State and flees across state lines into another State, he shall, upon request, be returned to the State where the crime was committed. Thus, the Framers, through this clause, denied the federal government any general interstate criminal jurisdiction over the people of the several States.

Civil libertarians are vehemently opposed to the Patriot Act because they claim it is eroding our freedoms. That has been happening right under their noses through the Commerce Clause for over 70 years. In fact, the Commerce Clause was the “constitutional” basis for various provisions of the Patriot Act.

If the unconstitutional expansion of federal power through the Commerce Clause is not halted and reversed, the federal government will obliterate what’s left of the system of limited government established by the Constitution and seize total control of every aspect of life in these United States.

(Editor's note: I'd like someone to name a single thing over which the federal government does NOT claim total control right now, or even something over which they might claim such, but have not yet exercised it. I can't think of anything. Susan Callaway, Editor)

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