The Interstate Commerce Clause and the Kitchen Sink

Joy Tiz

©2010

Thirteen state attorneys general are challenging the constitutionality of the health crimes bill signed by the president this morning.  The states are correctly asserting that the legislation is unconstitutional and should be struck down, ideally in its totality.

Liberal pundits have been delivering their talking points, letting us know that they plan to seek cover under the Interstate Commerce Clause of the United States Constitution.  Article I, Section 8 specifically empowers the Congress to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Despite what liberals want you to believe, the Constitution actually gives very few powers to the federal government;  and if that power is not specifically spelled out, it was meant to go to the states.

Let’s dispense with the supremacy clause.  Democrats are insisting that federal law always trumps state law when there is a conflict.  (Apparently, that doesn’t apply in Chicago when the issue is the 2d Amendment, however).  They are only partially correct.  Congress is not free to pass any unconstitutional statute it pleases, supremely confident in the knowledge that their rule always wins.  Virginia Attorney General Ken Cuccinelli has it right:

“And normally, as you know, the supremacy clause would lead to the federal bill trumping, except when it is not constitutional, and that’s where our allegation that the bill is unconstitutional comes in. They have overreached the commerce clause here, and we don’t think the commerce clause can support this bill.” 

Imagine the crazy stuff the feds could force on the states if the government got hijacked by evil doers! Fortunately, the states have the right to refuse to carry out any federal mandate that violates the US Constitution.

Democrats are trying to take cover, predictably, under the Interstate Commerce Clause.  Long a favorite of the radical left, the clause has been bastardized to create a mechanism by which the federal government can claim jurisdiction over virtually any issue or individual.

Liberals, who have no understanding of history, fail to appreciate that our Founding Fathers fought a long and bloody war to escape the tyranny of an overreaching, centralized government.  They were not eager to draft a constitution that would enable another one.  Indeed, our Founders took the trouble to spell out in plain language the few powers granted to the federal government.

The original intent of the commerce clause was, literally, to regulate interstate commerce.  Regulate- not own, control, stifle or punish.  Our Founders’ purpose was to promote free trade across the individual states.  Thus, it would be necessary to ensure states didn’t become overly protectionist by charging tariffs on out of state goods or other mischief that would impede the free flow of commerce.  

Activist judges have since contorted the clause beyond all logic as a device for increasing federal power.  The most wretched of all commerce clause cases was the odious Wickard v Filburn.  Roscoe Filburn, an Ohio farmer, raised small quantities of wheat for his own food and to feed his own livestock on his own farm.

In 1942, the Supreme Court unanimously ruled that the interstate commerce clause applied to the hapless Mr. Filburn’s wheat.  Why?  Because, theoretically, even though he had never done so and had no plans to do so, he could someday, maybe, possibly, sell his wheat on the interstate market.

In other words, if an activity has the potential to have an effect on interstate commerce, the federal government could regulate it.

“[The wheat] supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” 

Only the liberal mind, fixated as it is in fantasy and delusion could possibly think this ruling made any sense.

The court didn’t stop with plundering privately owned farm land.  Filburn has had an impact on criminal prosecutions.  According to fatuous liberal judges, if you commit a crime in your own living room and the feds are gunning for you for some reason, they can take jurisdiction over you.  They’ll find some way to drag interstate commerce into it-that cell phone in your pocket could be used to make out of state calls, you know.

Justice Clarence Thomas has already signaled that it’s time to rein government back in and stop the Commerce Clause abuse:

“Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause…. [I]t seems to me that the power to regulate ‘commerce’ can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities’ effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination. Lopez, 514 U.S. at 584-85 (Thomas, J., concurring).” 

Let’s hope that when the health crimes monstrosity hits the courts, we will at long last get a ruling that takes us back to the Constitution and strips power away from our current crop of oligarchs.