September 26, 2005

Prior to John Robert's confirmation hearing to be Chief Justice of the United States Supreme Court, a friend asked me what subjects I thought senators would focus on during the proceedings. I told him one thing was certain---look for several democrats to zero in on the Commerce Clause because no matter what other topics are covered, they consider a nominee's views on this provision as the all important question. Senator Charles Schumer, a democrat from New York, confirmed this fact during an interview on Bill O'Reilly's television show at the end of day four of the hearings. In a rare moment of honesty, Schumer stated that a nominee's views on this clause are critical because it has been the source of the federal government's expansion of power during the past 60 years.

The Commerce Clause, which is found at Article I, Section 8, Clause 3 of the Constitution for the United States, grants Congress the power to "regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Commerce Clause, as it pertained to the States, was inserted into the Constitution as a free trade provision. It granted Congress the power to make regular, or normalize, commerce between individual State and individual State.

During the past 60 years, the federal government has used this Clause to circumvent the limitations placed on its powers by the Constitution. The Commerce Clause is now 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. This has resulted in the federal government being judicially transformed from a government of limited enumerated powers, as intended by the Founders, to a government of unlimited general power.

Current Supreme Court Justice Clarence Thomas has been demonized by democrats because he is an outspoken critic of the federal government's expansion of power under the Commerce Clause. Democrats are scared to death that a nominee will share Thomas' desire to return the Commerce Clause to its original intent because it would be a huge step in re-establishing the system of limited government created by the Founders.

Here are several of the important Commerce Clause questions asked by democrat senators during the Robert's hearing. The first one is from Diane Feinstein of California.

FEINSTEIN: "Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years. As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause. Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.

The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment. My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?"

The senator's statement reflects the power hungry arrogance of Congress. Striking down federal laws that exceed congressional power under the Constitution is unacceptable to members of Congress. These clowns think there are no limits to their power and everything they do is constitutional. How dare another branch of government scrutinize congressional legislation to see if it exceeds the limitations imposed on federal power by the Constitution.

Ms. Feinstein thinks that striking down congressional legislation constitutes "a reinterpretation of the commerce clause." No senator you have it wrong. It was FDR's Supreme Court rewriting the Commerce Clause over 60 years ago that is the problem. If you were faithful to the Constitution as you claim senator Feinstein, then it would irrelevant how many case were struck down so long as the original intent of the Constitution was being maintained. Your loyality would be to the Constitution irrespective of whether congressional power was curbed in the process.

The senator's claim that "future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment" constitutes the height of federal arrogance. In Feinstein's mind, the States are just helpless children who are incapable of solving any domestic problems. Only mother federal government, working through the Commerce Clause can solve their problems.

If Senator Feinstein was truly concerned about the proper interpretation of the Commerce Clause, then she could resolve this issue by simply consulting Federalist Essay No. 45. In this essay, James Madison, who is recognized as the father of the Constitution, distinguished the external powers granted to the federal government from the domestic powers reserved to the States. These two paragraphs provide a basic blueprint of the structure of government established by the Constitution:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger, those of the State governments in times of peace and security."

Since the powers of the federal government pertain to external or foreign affairs, then Ms. Feinstein, any use of the Commerce Clause as a source of domestic power, as you stated in your question, is a reinterpretation of the Constitution. See how simple it is senator to resolve these "complex" constitutional questions when you are intellectually honest.

The next question from Charles Schumer of New York reflects the extent of federal usurpation of power under the Commerce Clause.

SCHUMER: "Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, exert a substantial economic effect on interstate commerce?

In other words, can Congress regulate commerce that doesn't involve an article traveling across state lines?"

The simple answer to Schumer's question should have been no. But that would have caused democrats, and republicans alike for that matter, to put Roberts on the next greyhound bus headed for Nome Alaska.

If you were not so concerned about maintaining power Senator Schumer, you would have consulted the writings someone who was alive when the Constitution was adopted to get the correct answer to your question. In 1791, Thomas Jefferson stated that Congress was not granted the power to regulate commerce within the several States:

"[T]he power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state, [that is to say, of the commerce between citizen and citizen,] which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations, or with Indian tribes."

This simple principle escaped FDR's Supreme Court in the 1940's. That Court, like Senators Feinstein and Schumer, was more concerned about expanding federal power than preserving the original intent of the Constitution. In the infamous case of Wickard v. Filburn, the Court established the enduring principle that Congress may regulate not only commerce among the several states, but also anything that has a "substantial effect" on such commerce. Under the substantially affects interstate commerce test adopted by the Court, Congress can regulate whole categories of activities that are not themselves either interstate or commerce.

Based on the Court's Commerce Clause rulings, Congress can control every aspect of your life because every thing you do during the course of a day could have a "substantial effect" on interstate commerce. The simple act of going for a walk could subject an individual to federal regulatory control because the activity has the "potential" to substantially affect interstate commerce. Being absent from the house could cause an individual to miss a phone solicitation for a commodity. That it turn could affect the flow of commerce.

Senator Schumer let the cat out of the bag later in the hearings when he stated, "so much of what we do is based on the commerce clause."

The Commerce Clause is the holy grail of federal power and members of Congress know it. In the author's opinion, Roberts would never have been nominated or survived the Judiciary Committee hearings if he had any intention of seriously curbing federal power under the Commerce Clause.

Several prominent republican commentators have voiced their support for nominee Roberts because they claim he is an "originalist" when it comes to the Constitution. If they're right, then his ascension to Chief Justice would be the greatest wolf in sheep's clothing trick of all time because the majority of all federal regulatory schemes will be in serious jeopardy of being declared unconstitutional. Since the chances of that happening are about a zillion to one, don't look for federal usurpation of power under the Commerce Clause to stop anytime soon.

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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