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How the Supreme Court Bastardized the Commerce Clause

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June 9, 2012 in Politics


The interpretation of the Commerce Clause has been expanded to the point that the federal government has unlimited power over all aspects of American life.

By Richard Walbaum

 The federal government has no powers except those specifically enumerated in the U.S. Constitution. Those powers not granted are reserved to the states and the people. In this article I will examine how the Commerce Clause, Article 1 Section 8 Clause 3, was re-interpreted to the point that today the federal government acts like an all-powerful government without any limitations except those self-imposed, with vast power to regulate all areas of our lives, and even the Supreme Court is unable to articulate a single power reserved to the states, making most of the other enumerated powers irrelevant or superfluous.

The Commerce Clause reads: “The Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The original intent of our founding fathers was to prevent states from restricting or prohibiting commerce, or imposing tariffs upon, neighboring states. But today, Congress can regulate anything that has a “substantial effect” on interstate commerce. All aspects of American life, even your breathing (which emits carbon dioxide and some claim causes global warming) can be regulated under this doctrine.

The easiest way to understand the Commerce Clause is to read Supreme Court Justice Clarence Thomas’s brilliant dissenting opinion in United States v. Lopez, 514 U.S. 549, 584 (1995); here are some salient quotes from the voice of authority:

Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. …

Of course, the United States has no powers except those expressly granted.

The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States. …

This is the purpose of the Tenth Amendment, to reserve undelegated powers to the states and the people.

Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected commerce, the founding generation did not cede authority over all these activities to Congress. … .

Justice Thomas explained that the early meaning of “commerce” meant selling, buying, and bartering, and not productive activities such as manufacturing or farming, whose products are traded in commerce. Using the modern sense of “commerce” creates textual problems; you cannot engage in manufacturing with a foreign nation or Indian Tribe:

The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. …

The Supreme Court has rewritten the Constitution, beyond the Framers intent:

Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” Clause had that been their objective. …

If Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6, [or] establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13. … [or] regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

Put simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, § 8.

Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the Clauses of § 8 all mutually overlap, something we can assume the Founding Fathers never intended. …

When asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words. … Likewise, the principal dissent insists that there are limits, but it cannot muster even one example.

Because the Supreme Court’s interpretation makes other phrases irrelevant, rewrites the Constitution, and supersedes the Tenth Amendment’s protection of individual and states rights, the interpretation is arbitrary and unreasonable, contrary to the grant of power, and subject to nullification under natural law principles.

Richard Walbaum, the author of The LAWFUL Remedy to Tyranny and Designed for Plunder, promotes the restoration of righteousness through natural law. Follow Richard @legaltender9 and visit NaturalLawRemedy.com.

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