By William Haupt III
“Anything government wants to do they can justify under the commerce clause.”
– John Yarmuth
The federal government finds endless ways to circumnavigate the intent of the Constitution. Its greatest weapon is the Commerce Clause. The Commerce Clause is a short phrase of 16 words any common core student can understand. Yet it is one of the most misunderstood articles in our Constitution. Progressives historically have used it to justify social engineering. It was the key to nationalize health care and enabled the EPA to regulate everything in our lives. It has perpetually redefined the delegated powers of government. It’s the path of least resistance to replace state sovereignty with federalism. It has always been and will continue to be our greatest threat to protecting republicanism.
During the dog days of summer in Convention Hall, our founders carefully considered each word written in our Constitution. This was to insure everyone would be able to follow its language and never ignore it. Our framers’ goal was to protect our fragile union of states. When they included Section 8 in the Constitution, it enabled Congress “to regulate Commerce with Foreign Nations, among the states, and with the Indian Tribes.” Its sole purpose was to protect state sovereignty. The Treaty of Paris in 1783 vested America as 13 sovereign nations. Our founders acted on this established premise.
“A country of well-informed men is a country well protected.”
After years as subjects, these apprehensive citizens were penchant about colonial protectionisms. This was a key concern when our framers created the commerce, privileges and immunity clauses. They established a federal public free-trade zone. This was only meant to eliminate trade barriers among the states and nothing more. They had no intent to allow government to use this clause to defrock states rights with federalism. In The Federalist Papers, James Madison wrote, “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”
After the Revolution, our founders knew the central government must compromise with the states to ensure ratification. But with the blink of an eye, government overstepped its boundaries. During the 1st Congressional session in 1791, Jefferson and Hamilton feuded again and divided the country in half, with Hamilton protecting federalist policy. For years, Congress battled with the courts as they attempted to use the commerce clause to extort the states with unconstitutional laws and executive enactments. But the courts held their ground and spanked Congress every time like bad boys in a PE class.
“There is no distinctly native American criminal class except Congress.”
– Mark Twain
For over a century, the courts ruled in favor of the intent of the Commerce Clause. In Schechter Poultry Corp. v. United States 1935, and Carter v. Carter Coal Co. 1937, the court ruled against Congress. An enraged President Franklin Roosevelt retaliated and lobbied Justice Owen Roberts to change his vote and uphold many illegal New Deal reforms. Henceforward, the court issued decisions in United States v. Darby Lumber Co. 1941 and Wickard v. Filburn 1942. This was a Waterloo for states’ rights. As the federal government continued to bully the courts, they cleverly enhanced the evils of federalism.
“In politics, nothing happens by accident. If it happens, you can bet it was planned that way.”
– Franklin D. Roosevelt
FDR left his mark on America with two bad decisions that fundamentally restructured the court’s judicial regulation of U.S. commerce. From 1937 to 1995, the court did not invalidate one illegal law Congress passed when they violated the Commerce Clause. For the first time since FDR’s “Bad Deal,” in 1995, the Supreme Court in a 5–4 decision agreed that Congress could not interpret the Commerce Clause to regulate handguns. As many Americans cheered the end of the reign of federalism, they soon discovered the court only bowed to extreme public pressure, then it was back to business as usual.
“Presidents come and go, but the Supreme Court goes on forever.”
– William Howard Taft
The latest and greatest assault on state sovereignty was Chief Justice John Roberts’ amendment of the individual insurance mandate from Obamacare. Roberts literally reinvented the statute with a left-handed stroke of the pen. He conveniently renamed the penalty for not buying insurance a tax. This decision set a treacherous precedent. It enabled the court to facilitate lawless indiscretion by the federal government. Legal scholars consider this the most egregious assault against individual rights in history.
“Obamacare was passed in a romper room of overgrown children.”
– Matt Taibbi
The court’s elasticizing of the Commerce Clause has rendered its original intent meaningless in U.S. jurisprudence. Court decisions since FDR’s assault on the Constitution demonstrate just how easily judicial deference becomes judicial dereliction. The Commerce Clause grew out of a need to prevent the abuse of the power by the importing states in taxing the non-importing states. It was intended as a custodial and preventive provision against injustice among states themselves. Today, it has morphed into a judicial super power used for abuse of the states by the federal government to foster increased federalism.
“The Supreme Court needs jurists, not politicians.”
– Timothy Noah
Change is an inevitable law of life, but we never attempted to undo any post-New Deal Supreme Court precedents that allowed Congress to exercise powers never granted. We will never clear our books of FDR’s postmodern social abridgements. But we have the power to slow down the spread of federalism if we wish. It is called the 10th Amendment. And that is controlled by the states, not the federal government. Since all government is local, controlling federalism starts at the doorsteps of our state legislative chambers, not in the halls of Congress.
“This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.”
– Will Rogers
The states no longer need protection from each other; they need protection from federalism. The Commerce Clause has worn out its welcome. If any citizen was to violate as many core elements of our Constitution as Congress, they would be tried for treason! It is time to stop the bleeding and either fix it or put it out of its misery before it ends state sovereignty. Justice Roberts had a chance to do this with his Obamacare ruling but blew it. He could have set precedent to begin healing our broken judicial system.
“One can only treat what they know is ailing them.”
– Alcmaeon (500 BC)
Anti-federalists opposed ratification because they feared an overbearing central government. While its proponents promised that this wouldn’t happen, this was a promise broken. Anti-federalists felt federal power would be undermined by expansive interpretations of general welfare over the rule of law. They demanded a Bill of Rights to protect state liberty and sovereignty. They never thought the states would roll over and play dead and not protect their sacred liberties from the expansion of federalism.
“Liberty means responsibility. That is why most men dread it.”
– George Bernard Shaw
If we choose to control federalism, we must exercise self control in our states and refuse to keep trading our rights for favors from the government. The only ones who can protect states’ rights are the states themselves. Federalism cannot infect a state that is willing to fight back when their Tenth Amendment rights are violated. The choice is ours: Either Federalism or state sovereignty.
“I own, I am not a friend to a very energetic government. It is always oppressive.”
– Thomas Jefferson