A Clause you should know: The Commerce Clause

The Commerce Clause is located in Article 1, Section 8, Clause 3 of the Constitution and it states Congress  has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

This is a very controversial clause within the Constitution, as far as what its boundaries are, i.e. how much power the Federal government has.  The powers of the Federal government, according to the Constitution are limited to only ones specifically given, while the 10th Amendment states that all powers NOT specifically enumerated to the Federal Government are given to the States.

The Controversy arises in Congresses use of this power to “regulate” the activities of states, companies and individuals and has led to the battle over power between the States and the Federal Government.  There is a controversy as well over what the word “commerce” actually means, Some (More Constitutionalist) believe that it refers specifically to business, trade and exchange; others (Statist) believe it refers to ALL forms of exchange, commercial and Social of individuals between different states.

Historical Examples

• 1824 Gibbons v. Ogden the Supreme Court found that Congress had the power over interstate ”navigation”
• 1905 Swift and Company v. United States, The court used the Commerce Clause to uphold the Sherman Anti-Trust Act and that Congress could halt “Price Fixing” of Meat in Chicago.  That even commerce at a purely local level, only in Chicago, was part of a “current”of commerce that involved interstate goods.
• During the massive push of the New Deal to “Save” Democracy, the court also reigned in the power of the Federal government despite decisions like Swift and Company v. United States.
• Schechter Poultry Corp v. United States it was found that the National Industrial Recovery Act was unconstitutional in that the commerce clause DID not allow Congress to regulate workers hours who bought and sold chickens only within the bounds of the state of New York.
• The Court also found the Bituminous Coal Conservation Act unconstitutional in Carter v. Carter Coal Corp.

Overreach/Progressive Era

FDR’s New Deal Legislation was a huge step in the power of the Executive Branch and the Federal Government, however what you often don’t hear about in school is how many of his program were declared unconstitutional by the sitting Supreme Court.  After re-election President Franklin Delano Roosevelt in true Progressive manner decided that since the Courts decided that his power was not omnipotent he was going to overrule the courts…by appointing new ones! He had the Judicial Procedures Reform Bill of 1937 introduced which would have expanded the Supreme Court from 9 to 16 Judges, thus ensuring his bills went undefeated.  The Bill was defeated however he won in the End.  In the following years 2 Justices died and 5 retired, leaving only two left from the Court he inherited and was very much antithetical to many of his claims to power.  He packed the courts anyways and New Deal Legislation went through, albeit much less than if the courts have been favorable years before.

• Civil Rights Legislation used the Commerce Clause to enforce its provision, through many various means.

Now let me make this clear, I am not racist by any measure of the word, nor do I think that schools should be segregated nor should the military NOT be integrated. Far from it, however even for good things I do not like hazy uses of Federal powers to push things through. People will say BUT THAT MAKES YOU RACIST YOU DIDN’T WANT CONGRESS TO DO THAT??? No once again read it. However when you allow hazy readings of powers and abstract uses of it, they are always pushed through for good reasons, but later used for the opposite of that.

• Katzenbach v. McClung found that a small town BBQ joint didn’t want to serve to non-whites, but the court found that Congress had the power to Make them due to the fact that they bought food from a local supplier…who bought it from out of state.  I agree that this technically fits in with the law as it is stated, but not as the Founders would have thought it to be used, nor how it should be used to force individuals to be better people.

Once again I do not think that “Ollies BBQ” should not serve people based on their race or religion, however I do not like the ability of the Congress to force you to do something because you used a nail to build a house that was manufactured in Washington, get my drift?

Conclusions.

As I just stated above, even for good reasons, this far reach of hazy interpretation is dangerous.

In recent times we have heard of numerous proposals for States to not abide by Federal bans on weapons by having manufacturers produce these weapons in the state and ONLY sell to residents of that state.  Will this sounds like common sense in how the Commerce Clause SHOULD be interpreted, in fact this type of “remedy” to not abide by unconstitutional Federal fiat will not hold up in court.

For this to work, these things below would have to present.

• All the materials for the weapons would have to be produced in state
• The Steel, Aluminum, Copper, Lead, Brass, Plastic, Etc.
• All of that would have to be mined in state as well as every piece of material made to make the mines and the mining equipment
• Every piece of paper, paperclip and computer used in all the above business would have to be produced in state, as well as all the the things to make the factories to produce them

There’s even more detail to it, but there was also a case Daniel v. Paul in which a private club did not abide by the Civil rights act, saying they were a private club and did not conduct interstate commerce.  The Court ruled against them because….drum roll….the snack bar sold three items that had items in it produced out of state.  Once gain trying dislodge discrimination is not a bad thing, but opening the door to precedents of allowing the government to regulate private practices because a snack bar has a snickers made out of state, is overreaching.

The point of the Constitution is to first RECOGNIZE the INHERENT rights of the individual, and to set LIMITS on the Government.  The Constitution was specifically vague in some circumstances however the intention was wherever there was VAGUENESS, the rights of the individual were always to win the day.  Privacy, Private Property and Individual Liberty were to always trump the rights of the state, a “err of the side of liberty” sort of thing.  However the wishes of the founders were not carried out, and I often wish I could go back in time, show them a couple novels of our history since 1800 and tell them BE MORE DAMN SPECIFIC! However we cannot do that.

I find it beyond common sense and beyond any reasonable assumption that a clause to regulate commerce between states, to help mediate disagreements over commerce between States, somehow means that the Federal government can force citizens to abide by laws because they have candy bars from another state in their vending machines.

The Commerce clause was one of the the arguments FOR Obamacare, however, happily they rejected this as the mandate didnt regulate existing activity, but compelled the very activity they were seeking to us as the reason they had a right to regulate! A tail wagging to dog scenario.