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The Commerce Clause


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

From Article I, Section 8 of the Constitution of the United States

 As I said previously, this clause might have been stretched more than any other in justifying massive federal intrusion into peoples’ lives, American and non-American. The intent of it was quite clear to the drafters: regulate meant to keep regular. Under the Articles of Confederation, there was the problem of states impeding commerce between their own citizens and those of another. The intention of the commerce clause in regards to the states was for the federal government to ensure free trade between them. An excellent account of this (along with an explanation of all other powers listed in Section 8 of the U.S. Constitution) is Judge Napolitano’s The Constitution in Exile.

However, this clause has not been meant to ensure free trade between the states. Anything but. There is one obvious example of how it could be used productively today: allowing consumers to buy medical insurance across states lines so that they wouldn’t have to deal with the ridiculous insurance mandates in their own state. For example, residents of New Jersey are forced to buy pre-natal coverage, even if they are a man. Instead, the feds are trying to argue that they have the power to force people to buy medical insurance, because having medical insurance or not substantially affects interstate commerce.

A major case that set the precedent for this was Wickard v. Filburn, where Filburn grew wheat in excess of the federal government’s quotas (the constitutionality of which doesn’t seem to be question). Even if such measures were constitutional, it shouldn’t have mattered, since Filburn used the wheat for his own consumption and never sold it. However, the government argued that since he wasn’t selling it, he wasn’t buying wheat on the open market; and if everyone grew their own wheat and stopped buying it on the open market, it would substantially affect interstate commerce. In effect, he was affecting interstate commerce by not affecting it. The government won its case.

Now, one could find a myriad of examples of ridiculous arguments that are used in attempt to tie someone’s activity with interstate commerce, such as arguing that the federal government can legislate how far away firearms have to be from school grounds since if guns are close to schools, kids will be scared and unable to concentrate; if they can’t concentrate and don’t do well in school, then they won’t be as productive in the work force, which affects interstate commerce (as the Congress has argued).

One question I ponder is if the commerce clause didn’t exist or were written differently, would the U.S. federal government be as big and intrusive as it is today. After thinking it over, I would speculate it wouldn’t have made much difference. The government would have found some other avenue (such as arguing something was necessary in pursuit of national security, as has been done with things such as interstate roads), or they would have just done it anyway. There are so many things that the federal government regulates that don’t have constitutional backing, even misconstrued backing. I think of the local buses that have signs stating that the U.S. Federal Code dictates that I have to give up my seat to a handicapped person if no other seats are available (obviously the federal government thinks bus riders have no common decency). No constitutionally given power justifies this regulation. I believe that if the commerce clause did not exist and therefore couldn’t be abused, the bulk of the Constitution would simply be ignored as it is today, just the same.

My next question is, should any effort be made to restore a correct understanding of the Constitution in order to revive its chains to bind down politicians? Or should one come to the conclusion that perhaps documents have no power to stop the growth of the state, and that the only way to limit the state is to recognize no state at all?

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