The Commerce Clause

Chief Justice John Marshall established a broa...

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I’ve referred several time to the damage that the malinterpretation of the so-called commerce clause of the Constitution has done to freedom in the United States. First we should see what we are talking about, so here it is:

Congress shall have the power . . . to regulate commerce with foreign nations, among the several states and with the Indian tribes.

Like all of the Constitution it is pretty clear and straightforward, not really subject to misinterpretation, is it? That’s why I called it maliterpretation, in my opinion, it was done with malice aforethought.

What has brought this to the forefront is, of course, Obamacare. According to ink on paper (and James Madison in Federalist #25, as we shall see) this should be dead, no way, no how.

Richard A. Epstein over at Defining Ideas, a journal of the Hoover Institute, yesterday posted:

ObamaCare vs. The Commerce Clause

If Congress can regulate health care, it can regulate everything under the sun.


As everyone knows, the dispute over the individual mandate under the Patient Protection and Affordable Care Act (also known as ObamaCare) is due before the Supreme Court. The case will be argued this coming March, with a decision to be expected by June 2012—just in time to ignite political passions before the November presidential election. At this point, the bet has to be that the mandate will be affirmed, especially in light of the recent decision by Judge Laurence Silberman of the District of Columbia in Susan Seven-Sky v. Holder, which held that the individual mandate—whereby all persons must either purchase health-care insurance or pay a government penalty—falls within the power of Congress to regulate interstate commerce.

As we all know, this case will have many ramifications on our freedom and our ability to do business (especially in regards to creating jobs) and the general malaise many business owners are feeling. I think it will be the most important decision the Supreme Court will make in the first quarter of the 21st Century, at least. So we need to think carefully here. To continue:

Looked at from the vantage point of the original Constitution, ObamaCare should be dead on arrival. But the New Deal transformation of long-established Commerce Clause jurisprudence has introduced a set of unprincipled (but fine-grained) distinctions that turn the law into a mass of linguistic absurdities that should lead ordinary people to question the collective sanity of the legal profession. From the straightforward prose of the Commerce Clause, Judge Silberman concludes (accurately) that “[t]oday, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.”

From this dubious premise (which has no mooring in either the text or history of the Commerce Clause), Judge Silberman’s closing salvo in Seven-Sky then waxes eloquently on “the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.” In one well-crafted sentence, he has managed to encapsulate everything that is wrong with our modern Commerce Clause jurisprudence.

Do I need to tell you, although I am a laymen, I completely agree. To continue:

In making this grand claim, Judge Silberman at no point cites the key 1824 decision of Chief Justice John Marshall in Gibbons v. Ogden on the proper scope of the Commerce Clause. At issue in Gibbons was whether Gibbons, the operator of two steamboats from New Jersey to New York, had to respect the exclusive franchise that had originally been given to Robert Fulton and Robert Livingstone (and assigned to Ogden) to operate steamboats in New York state waters.

Justice Marshall held that these voyages were within interstate commerce, meaning that the federal law trumped this form of state action. In so doing, however, he made clear the limits of the federal power. “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.” New York’s monopoly, therefore, was not disturbed with respect to boats that started and ended their journeys in New York state water. Marshall could not have been clearer: “Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.”

Mr Epstein carries on the history of the muddled interpretations that made the New Deal ‘legal’ and on down to the present day. That includes the famous Wickard v Filburn where the Supreme Court decided that feeding your own wheat to your own cows had a substantial impact on interstate commerce. Since it was decided by the Supreme Court, I would have to call this Supreme Silliness.

If you want to understand the background, you should read his article, besides it’s interesting to see how perfectly clear English can be perverted over the years.

I have very little to add to his scholarship. I would however remind you that if the government can force you to buy insurance, they can force you to buy anything else they desire. Is there a mandated Chevy Volt in your future?

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