Here is the abstract:

This lecture was delivered on May 23, 2012, as part of the Supreme Court Historical Society’s annual Leon Silverman Lecture Series. My goal was to discern what key founders envisioned when they crafted and approved the Commerce Clause and explore how it has been interpreted and applied by the Court. I take as my starting point themes struck by James Madison in his Vices of the Political system of the U. States, in which he noted a “want of concert in matters where the common interest requires it,” a flaw “strongly illustrated in the state of our commercial affairs,” to the point that “the national dignity, interest, and revenue [have] suffered from this cause.” Madison’s lament was not, however, about the need to guard against an overbearing federal government. Rather, he was concerned about the corrosive effects of a “a mistaken confidence” in “the justice, the good faith, the honor, the sound policy, of . . . several legislative assemblies” whose actions were marked by “caprice, jealousy, and diversity of opinions.” Madison also counseled against excessive reliance on interpretations grounded solely in the drafting and ratification debates, speaking of the need to “liquidate and ascertain” meaning over time, recognizing, as did Chief Justice John Marshall, that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A close and careful reading of both Madison and Marshall – in particular, Marshall’s opinion for the Court in Gibbons v. Ogden (1824) – suggests, accordingly, that sharp departures from the original understanding of the Commerce Clause occurred long before Wickard v. Filburn (1942), and that there is substantial support for an expansive reading of the nature and scope of the commerce power in the words and intentions of the founders.

What the hell were they thinking?  If that statue could get up she would be lopping off head with that sword.

You know there are supremely bad Supreme Court calls–Swann v. Charolotte-Mechlenburg County Board of Education, which created racial busing; Gibbons v. Ogden, which gave the government too much power in regulating commerce; South Dakota v. Dole, which gave the federal government the right to control internal state matters; Kelo, which abolished private property rights–and there are truly evil Supreme Court calls (Dred Scott, Plessey, Korematsu…actually Kelo belongs in this category)…there are even well intentioned but just supremely stupid calls like Brown v Board of Education whose answer to government overreach of power was to give the government more power or Roe which for all the right reasons created the most useless headache in American history.

And then there is this shit which has me going WTF.

So let me get this straight. The Commerce Clause is limited, and the Obamacare isn’t Constitutional under the Commerce Clause. This would be nice if we interpreted this decision as over turning judicial BS like Gibbons and Wickard v Filburn which have always given the government the right to regulate all commerce (which the Founders never intended and were quite against) not just interstate commerce. And if this ruling is used to strike down such socialistic abuses of the federal government and restore us to a more capitalistic society, then great.

But while that is a correct interpretation of the Commerce Clause…Roberts and his idiotic liberal friends find an interpretation of the taxing clause to be so insane I have to ask if LSD has been put in the Supreme Court drinking water.

Here is everything the Constitution has to say about taxes:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

No Tax or Duty shall be laid on Articles exported from any State.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. (This clause changed by the 16th Amendment)

AMENDMENT XVI : The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Now, I’m not a Constitutional scholar, but I’m well read and can reason for myself. Most of the points about taxes have no bearing on this debate. The only relevant parts are the last two lines. Article 1 Section 9 denying all taxes but in direct proportion to the census and Amendment giving the federal government the right to tax income. Now stop me if I’m wrong here, but nowhere does it say they can tax me for not doing something. Further the 16th Amendment only gives the right to tax income, not punish, not impose fees. The government does have the right to impose fees and charges under the Commerce Clause, but we’ve already dealt with the fact that Obamacare is unconstitutional under the Commerce Clause.

The 16th Amendment gives the right to tax income and income alone. I don’t see the right to tax actions or more importantly the lack of action. So please explain to me how this court decision does not give almost infinite power to compel obedience through the taxing clause instead of the commerce clause.

Now some conservative commentators have been trying to defend Roberts’ actions, as if stripping the Commerce Clause alone was a great thing. But what profit it conservatives if they should gain the commerce clause but lose capitalism? Roberts took us one step forward and 10 steps back. Excuse me if I’m not thrilled. What the hell was Robert’s thinking?

If they can “tax” me for not buying insurance, what else can I be taxed for? Can I be “taxed” for owning a foreign made car every year (after all we have to give Government Motors running)? Can I be taxed every year for not joining a union? Can I be taxed for not giving money to his divine holiness Barack Obama’s campaign? Where is the limit to taxing power Roberts and his ilk created today?

And how is a “tax” for non-action not in violation of the 5th and 14th Amendments guarantee I will not be deprived of property without Due Process? How is a fine designed to coerce action, which by nature must be unusually high, not in violation of the 8th Amendment’s statement that excessive fines will not be imposed. How is all of this not in violation of the general idea of the Constitution as a document to limit government power, not give carte blanche?

So Roberts is an idiot. And please don’t come off with your “you’re Constitutional scholar” crap unless you can tell me where the government has the right to tax me into compliance with their laws. I may not be a Constitutional scholar, but I am a citizen and it is not only my right, it is my responsibility to know the Constitution and question the action of government officials.

Now with the theoretical and long term problems this could present in that it now gives the government power to tax you into slavery…let’s deal with the pragmatic results and long term solutions…

First off, Obama just lost the election. One of the few things he had going for him was saying that he never raised taxes on the middle class (a lie, but he could get out of it by technicality). That technicality just ended. It’s a tax and he’s putting it right on the backs of the middle class.

And given how unpopular this law is, it’s not a shock that Romney has raised over 2 million since the Supreme Court came out with its brainless call this morning.

Instead of Romney having one issue to run on, the economy, he now has two to run on the economy and Obamacare. (Now add the fact that Egypt is probably going to do something psychotically evil and Europe is about to collapse, he’ll also have foreign policy to run on before November). Obama was at best running neck and neck this morning…now the conservative base is energized like never before, independents have something to fear, and the Tea Party has been given a shot of atropine to the heart. It’s over Barry.

Also a short term pragmatic effect is that this will kill any possibility of economic growth before November. Some businesses might have been hiring with hope that Obamacare was about to be overturned. That won’t happen now. Businesses aren’t stupid and they’re not going to take a risk on what they can’t afford…they will wait until November and see what happens rather than commit economic suicide and saddle themselves with employees they can’t afford. This in turn will help Romney win, but expect a few more months of hardship economically.

Okay so let’s ask how do we deal with this long term?

Well the first thing is we need to overturn Obamacare.

It needs to be replaced with tort reform to make care cheaper, reform of regulations in the FDA and drug companies to make the drugs cheaper, allowing insurance companies to cross state lines which will lower costs across the board. Further we need real immigration reform (1) to get rid of the illegals who are living off the taxpayer dole and who have been responsible for massive ER and medical provider closures throughout the country and massive state debts and (2) to further help attract those who are qualified medical care providers which we are short of right now.

As to the two popular points of Obamacare the covering of children until 26 and the preexisting condition coverage, both are actually easily fixed. You can require that insurance companies offer coverage of children until they are 26 for premiums to be paid by the parents. Most insurance companies are already saying they’re going to offer the 26 thing even if Obamacare is overturned…why? Because they get to justify raising their premiums to cover a segment of the population that next to never need medical attention. Better to make it an optional idea and then only if your parents want to pay are you still covered (even if they offered it for an extra 50 they’d still make a profit…the real question is are you such a whining college drop out that your parents aren’t going to waste the money on your useless liberal ass).

As for preexisting conditions, we all know why insurance companies don’t like to take them on. They’re going to pay more money for your care and thus not make a profit. They’re in business to make a profit. Your doctor is in business to make a profit. Every sane person is out to make a profit. Only the insane and evil are self-sacrificing. Now what we can do is write laws that, if you have a preexisting condition they get to charge you more, which is only fair as I would say the majority of preexisting conditions are at least partly caused by behavior and lifestyle…and that if you have a preexisting condition you agree to pay for that policy for a specified amount of time (say 15 years) which guarantees that you won’t just stop insurance once you get the treatment you need (the reason why taking on preexisting conditions is usually a loss) and that if you kick the bucket your insurance company is the first creditor to be paid off. This is both a just way to deal with the situation and it takes much of the risk out of taking on preexisting conditions.

However just solving the problem of Obamacare isn’t the only problem.

We still have the problem that the Supreme Court just expanded the powers of the government to what the Founding Fathers would have shot people over.

Now there is the fact that I can hope Romney will appoint better people than Bush did. But that still doesn’t fix the problem entirely.

And I know that getting a constitutional amendment passed is near impossible these days but we have to push for these if this nation is to survive.

• We need an Amendment overturning this decision and Kelo reaffirming that private property is sacrosanct and that private property rights are one of the most central reasons for government to exist in the first place.
• We need an Amendment limiting the government’s taxing power to only taxing actual monetary transactions (which bars them from taxing you for NOT doing something). I would prefer changing the whole thing to only being able to tax sales and abolish the income tax, but I’ll take barring them from not taxing me for not doing something.
• We need an Amendment limiting the power of the Commerce Clause to ONLY commerce that crosses state lines (not theoretically could cross, not commerce that is tangentially involved in interstate, ONLY COMMERCE THAT CROSSES STATE LINES).

And we probably need something reaffirming the sacrosanct nature of a contract…but that’s tangential to this argument.

I know just the laws of tort reform and repealing Obamacare are going to be huge hurdles in and of themselves…but we need to focus on Amendments like this more than anything else or we risk legislation like this and bad court decisions like this every time the nation goes stupid and elects a liberal.

To: Ruben J Cogburn

From: Jennifer McCallian

Date: December 12, 2010

Re:  Investigation of Ruben J Cogburn for violation of the IWPA 2001

The  Federal government would argue:

1.  there is a growing public interest and awareness in historic Indian battles
2. There is increased desire to visit the historic sites
3. Tourism enhances economic development in the western states
4. Tourism is a key industry in several Western States
5. It  is within Congress power to pass the IWPA and regulate this industry
6. Ruben destroyed the coral that was part of an historic event and sold artifacts
7. Therefore Ruben destroyed an historic site and has engaged in interstate commerce in violation of a Federal law

QUESTION

Is Ruben Cogburn in violation of the Congressional Indian Wars Preservation Act of 2001 by bulldozing an old structure on his property? I will argue this Congressional Legislation exceeds Congress’ authority under the Commerce Clause and is therefore unconstitutional.

Response

Yes.  Mr. Cogburn, much to his dismay, is in violation of the Indian Wars Preservation Act passed by Congress in 2001.

Statement of Facts

 Federal authorities claim the IWPA act protects any structure or site, located on private land, that has significance to the Indian Wars from 1864-1892.  Journal and newspaper accounts confirmed that Ruben unknowingly bulldozed the corral in which there was a significant battle in May of 1865.

QUESTION

Does Article II, Section 3 of the Colorado Constitution allowing the right to possession and protection of  property invalidate or somehow impact the federal Law?

RESPONSE

No.  In Gibbons v. Ogden (1824) the Supreme Court held that states cannot pass legislation for the regulation of internal affairs regarding trade or the police powers that would normally fall within the scope of the state powers, if such legislation is inconsistent with federal law enacted under the commerce clause.  Congress has the authority to pass laws and the states cannot make laws in direct conflict with Congress.  Congress has the authority to regulate interstate commerce.  The question remains, are Rubens actions effecting interstate commerce?

QUESTION

        Does inadvertently destroying one piece of historically relevant property have an aggregated and substantial effect on commerce in Colorado?

RESPONSE

It makes no difference because aggregated and substantial effect is flawed and can be used to construe any activity as interstate commerce.  Referencing United States v Lopez (1995) Justice Thomas concurred with the court that “The substantial effects test suffers from this flaw (grants Congress a police power over the Nation), in part because of its aggregation principle.”  Under so-called “class activities” statutes, Congress can regulate whole categories of activities that are not themselves either “interstate” or “commerce.”  In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate commerce, not whether any specific activity within the class has such effects when considered in isolation.”   The federal argument of being able to regulate gun possession or gender motivated violence by creating remedies or whether one can throw something away on their land that they have no knowledge of or connection to and is seen as junk, is a slippery slope argument.  If Congress can use Interstate Commerce to have jurisdiction over these activities then they can surely have jurisdiction over all crime, over all people’s property and over all ways in which one can carry a weapon.  This exceeds congress’ power. The Constitution does not support the proposition that Congress has authority over all activities that substantially effect interstate commerce.   “The Constitution prohibited amendments that would affect Congress’ lack of authority to prohibit or restrict the slave trade.  One can argue if the aggregated effects test is invalid as stated in Lopez then the new test would include Congress’ ability to regulate commerce by: a] channels of interstate commerce, b] instrumentalities of interstate commerce even if the threat comes only from intrastate activities c]power to regulate activities having a substantial relation to interstate commerce. Ruben’s family’s property contained an old wall seen as an eye sore by his wife. This one little wall left over from a battle long ago does not to have a substantial relation (defined as an immediate, quantifiable and direct relationship) to interstate trade.

QUESTION

        Are there facts present in the IWPA that support the Hypothesis that destroying historic sites and selling artifacts to locals have a substantial relation to inhibiting or effecting interstate commerce?

Response

        No.  In the case of the IWPA Congress has made no findings of fact to correlate or give a substantial relation to inhibiting interstate commerce by destroying historic sites.  There is no evidence in the IWPA to back up the claim that historic sites lead to tourism, which leads to interstate commerce.  In United States v. Morrison (2000) the justices agreed with the ruling in United States v. Lopez and added the perspective that the statute outlawing gun possession indicated “no express jurisdictional element which might limit its reach to a discrete set of firearm possession that additionally have an explicit connection with or effect on interstate commerce.  Such a jurisdictional element may establish that the enactment is in pursuance of congress regulation of interstate commerce.”     Congress is not obligated to findings of fact but the IWPA contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce.  Fact finding would lend support to the argument that historic sites are sufficiently tied to interstate commerce but the IWPA is lacking this element.    Second, Ruben sales were strictly intrastate affairs.

QUESTION

Did Rueben engage in interstate commerce when he sold artifacts to in state residents?

Response

No, but he engaged in Intrastate commerce.   By selling the artifacts and distributing them in his state he engaged in intrastate commerce.  In Gibbons v. Ogden, Justice Marshall implied a distinction between Congress’s power over interstate commerce and that of the states over intrastate commerce.   In Gonzales v. Raich (2005) Congress was given the authority to regulate purely local activities in so much as they are part of a “class of activities,” namely a national marijuana market that was bigger than local or statewide sales.  Ruben is not part of an artifacts national market intending to hide his nationwide sales under the guise of local commerce to avoid federal regulation.  The nature of his artifacts is such that they are very rare to begin with undermining his ability to reach a market that is beyond his state. His supply and demand is limited and his intention was to profit from an accidental find.  These scarce and rare items do not have a substantial relation to interstate commerce between the states as put forward in the test from United States V. Lopez.  United States v. Darby (1941)-The power of Congress over interstate commerce is not confined to the regulation of commerce among the states.  It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.   The IWPA claims that legitimate end is tourism but provides no evidence as such.  Tourism can be defined as the clever marketing of a state’s assets.  Tourism in Ruben’s state will continue unchanged and unimpeded regardless of whether he replaces the old coral or not.  The aggregate effect is no longer the test.   To seize his property, threaten him with fines and jail does not represent a legitimate end of the granted power of Congress to regulate interstate commerce.  This is Congress attempting to confiscate and use the police power given not to it but to the states.  In Heart of Atlanta Motel Inc v. United States (1964) the legitimate end was to stop discrimination at a hotel that serviced many (over 50%) interstate travelers.   The means, Congress’ authority to pass legislation to prohibit discrimination by claiming that it decreased interstate commerce, justified the ends, the use of the commerce clause and the 14^th amendment that was then applied to the states by the 10^th amendment, in this case.  The causality links between tourism, interstate commerce and Rubens coral and the sale of a few artifacts is attenuated at best.

First Hypothetical Fact Pattern, Question II

The definition of the powers given to Congress by Article 1, Section 8 of the Constitution has evolved over time.  If Ruben’s case had to be decided in 1938 it would most likely not end in his favor.   The bench mark cases at that moment in our history drastically extended Congress’ reach with the Commerce Clause.    McCulloch v.Maryland, Gibbons v. Ogden, United States v. E.C. Knight, Hammer v. Dagenhart were exercises in judicial activism that extended Congress’ reach beyond its intended powers in Article I, Section 8.  If Rubens case was before the courts before 1938 it would have been decided based on the law and tests in Jones & Laughlin Steel Corp.  The Indirect and direct effect test would have been applied along with the aggregate and without Morrison and Lopez the substantiate the flaw of the Jones test our case would have been lost.   Jones reestablished Gibbons v. Ogden and extended the reach of Congress to regulate anything that has a substantial effect on Commerce.   It amended the Indirect/Direct Test and after this judgment Congress passed the Fair Labor Standards Act of 1938.  To further Illustrate the impacts of Jones on my case and other after 1938 one can look to  United States v. Darby in 1941  and Wickard v. Filburn in 1942 both of which continued to expand Congressional reach and regulation with the commerce clause. Darby moved away from the substantial test.  The question became whether the production is intended for commerce.  If one is producing goods intending that they be used in commerce, then the regulation on the production, whether it is in a child labor regulation or minimum wage regulation, the regulation will be upheld so long as it involves the production of goods intended for commerce.  In WIckard production may be regulated if it potentially affects commerce.

My argument in Ruben’s defense rests on cases such as Morrison and Lopez that substantially reign in and limit Congresses reach with the commerce clause.  His defense is grounded in the notion that the proper test exists in whether an activity has a substantial relation to interstate commerce without consideration of indirect or the aggregate.  Without Lopez and Morrison which came many years after the expansion of Congressional powers in Jones & Laughlin Steel Corp my client would be doomed.

Wickard v. Filburn  would have been the end of our defense if not for the court in Lopez seeing the flaw in aggregate effect.  Wickard held that if the aggregate effect of an action is not trivial then it can be regulated by Congress.  The problem is too much of anything can be applied by an aggregate effect and therefore no economic activity can be excluded.  My client’s activity of bulldozing an historic site taken in the aggregate, with the assumption made through findings that tourism contributes to commerce as established in Heart of Atlanta Motel, would have been subject to federal punishment.

The following illustrates the evolution of the commerce clause:

The evolution of the commerce clause

McCulloch v. Maryland(1819)-Congress has the power to incorporate a bank, even though that power is not specified within the Constitution.  A state does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.  This case reinforced Martin v. Hunter’s Lessee

Gibbons v. Ogden (1824)-The Court held that the states cannot pass legislation for the regulation of internal affairs that would normally fall within the scope of the states’ police powers, if such legislation is inconsistent with federal law enacted under the commerce power.

United States v E.C. Knight Co-The power of Congress to regulate commerce may operate to suppress monopoly whenever it comes within the rules by which commerce is governed, or whenever the transaction is itself a monopoly of commerce.

Hammer v. Dagenhart-The Commerce Clause does not grant Congress the power to regulate the transportation in interstate commerce of goods that have been produced using child labor.

National Labor Relations Board v. Jones & Laughlin Steel(1937) –distinction between direct and indirect effects on interstate commerce.  The court held that intrastate activities that have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions are within Congress’ power to regulate.

Wickard v Filburn (1942)-Congress has the power to regulate local intrastate activities such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.

Katzenbach v McClung (1964)- Congress can regulate business activity that is purely local, if any part of the activity affects interstate commerce, if the aggregate activity has a substantial effect on commerce.

United States V. Lopez (1995)-proper test requires an analysis of whether the regulated activity sustainably affects interstate commerce.

SECOND HYPOTHETICAL FACT PATTERN

The Constitutionality of the of the Anti-Waco Bill

TO: House of Representatives

FROM: Jennifer McCallian

Deputy Attorney General of State of Colorado

Arguments for Constitutionality

State policing power

In Bibb v. Navajo Freight Lines, Inc. , It is acknowledged that the state has exceptional scope that is broad and pervasive in its power to regulate the use of its highways.  Safety measures carry a strong presumption of validity when challenged in court.  Southern Pacific Co. v. State of Arizona establishes that the state maintains its exceptional scope in policy decisions dealing with safety measures in reducing accidents and casualties as long as the law has more than a slight effect on safety  as  not to outweigh the national interest in maintaining the free flow of interstate commerce.   Southern Pacific also holds that impeding movement impacts interstate commerce.

Another question is whether the Anti-Waco Bill puts an undue burden on interstate commerce.   It does not have a significant effect on commerce by being off the road because there are many options available by car manufacturers but the Waco certainly does impede ccommerce by being on the road.  By slowing traffic below limits acceptable to the law, the Waco  impedes interstate commerce in the most literal sense.

Fact Findings

Duke obtained an expert witness though the state is not obligated to do so that supports the notion that the WACO will significantly slow traffic on Colorado mountain roads.  Evidence shows an extremely slow vehicle has the potential to cause accidents but more importantly it slows commerce

Arguments against Constitutionality

Discrimination-In Maine v. Taylor the court acknowledges that a state does not necessarily overstep its authority by passing statues that burden interstate commerce if it does so incidentally but those that affirmatively discriminate against such transaction do overstep state authority.  While incidentally effective to commerce statutes violated the Commerce Clause they did so only if the burdens they impose on interstate trade are clearly excessive in relation to the putative local benefits, statutes that burden transactions more than incidentally are subject to a  more demanding scrutiny.   The burden then falls on the state to prove the statute serves a legitimate local purpose and that this purpose could not be served as well by available nondiscriminatory means….Maine v. Taylor

The Anti-Waco Statute takes aim at the specific car built by Ford in response to EPA standards for fuel economy.  The Waco design is attempting to address a larger Federal mandate.  To specifically forbid a certain car from being bought or sold in a particular state does discriminate and can be declared unconstitutional by the fact that it affects interstate commerce (purchasing and manufacturing the car) when a more nondiscriminatory means could be found.

The statute could be worded in a way that does not forbid the particular model of the Waco but instead address the specifications of any hybrid or electric car so that they would not impede travel on mountain roads.  These regulations would then extend to all car manufacturers and fulfill the states interest in protecting the safety of its population.  A statute of this nature would not be discriminatory in nature and would employee nondiscriminatory means of creating environmentally friendly cars that were safe for travel on all roads in all states.

Southern Pacific establishes the idea of what is essential for safety.  It could be argued that traveling below the speed limit actually decreases the likelihood of injuries and casualties and the Waco will lessen rather than increase the danger of an accident.  The state will be making an exception to impatient drivers by forbidding the sale and ownership  of this car.

The Waco Bill will also create a discontinuity between Colorado and other states.  In Bibb v. Navajo Freight Lines, Inc., having to switch flaps at state lines was thought to overwhelming impede commerce and uniformity among the states on the basis of Illinois’ state law excluded out of state truck companies whose regulations for mud flaps were different  from competing with  Illinois trucking industry.  The correlation can be made that Colorado’s interest in a General Motors manufacturing plant is the impetus to an exclusionary state law on the grounds of safety.

Constitutional Law final

Zophie tells it like it is, yo!

Welcome to the first official installment of Teh Commerz Clawz, where I explain, incrementally, the cases that form the precedent for the current challenge to HR 3962 Affordable Health Care for America Act, and then explain the decision that allows the states to continue challenging the bill. In super simple language. Possibly in LOLspeak as well. Because it sounds like fun.

So to begin:

As many as you might know, when the Constitution was established, teh Statez haz probs. Lotz an lotz. The Articles of Confederation weren’t doing a whole lot. For example, every state could trade with every other state, but also every other country. They could print their own monies. No one was there to force them to pay debts to each other or the people. Obviously, not so good.

Courtesy of icanhazcheezburger.com

But when the founders got together to draft Teh Conztitushun, they didn’t want to have the same problems they had back in England. So they had to make sure there was a balance between state power and federal power. They decided they would give the national government the power to make money, draft treaties with other countries, and to regulate “Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

This allowed the national government enough control to make sure that there wasn’t a lot of division and that people got paid on time, and also allowed the states enough power so the national government didn’t do this:

I crusch statez wit mah mightie nashunal governmentz pawz! Courtesy of Discover Magazine

In the very beginning, the national government gave most Commerz Clawz powers to the states, including allowing states to effectively create monopolies by granting limited amounts of licenses or entering into agreements with private individuals for control of various roads and waterways, etc.

Gibbons v. Ogden

Enter Gibbon v. Ogden, which was the first Commerz Clawz case and thus super, super important:

In 1798, dude named Livingston gets a monopoly from the state of New York to operate steamboats.
Livingston: I can haz mon0poly?
State Legislature: Okie! You haz no funcshuning steamboat anywayz.

However, by 1813, Livingston was dead, but the steamboats were up and running quite well. So was the monopoly. Other states like New Joysey were getting super pissed, and Livingston’s successors, Ogden and Gibbons, were making tons and tons of money. Ogden had the NY monopoly on his side, and Gibbons had permission from the federal government to run his boats along the coast. But then Gibbons and Ogden broke up.

New York Monopoly Holders: U must end teh partnership wit Gibbons. Him iz stupid. Moar money!
Ogden:  Okie. MOAR MONEY!
Gibbons: IM GONNA FIND NEW PARTNR! I HATE U! IM GOIN 2 USE UR WATR ANYWAY!
Ogden to NY Courts: Makes him stop! Iz mah watr. U said so!
NY Courts: Gibbons! No NY watr 4 u! We gived it 2 Ogden. U no can haz watr.

Gibbons was obviously very mad about this. The federal government had already said that he could operate his boats all along the coast. That should include New York, no matter the stupid monopoly. So he took his case to the US Supreme Court.

Gibbons: Federal government haz power over watr. New York no can haz power. Watr is important, and is a nashunal issue. Watr not just 4 statez.
Ogden: This iz a state power 2! Regulashun of navigashun waz not granted to Congrez! 10th Amendment rulez over u! Besides, iz not commerz, iz trade instead! U cannot regulate trade! Only statez can!

In case you couldn’t tell, the relevant part of the Commerz Clawz is “among the several States.” But what is “Commerce?” What does “Among” mean? Supreme Court Kitteh will explain.

Supreme Court Kitteh knows all! (Oldest LOLcat in recorded history)

SC Kitteh: “So, we haz some very important questions to answer today. First, what is commerz? Gibbons says it iz only buying and selling of tings. We disagree. Commerz iz trafficking of goods, but it is also “intercourse.” Not like sex, u nazty ppl. NO! It iz “the commercial intercourse between nations, and parts of nations, in all its branches.” So obviously, navigashun is part of the intercourse of commerz. Gibbonz is wrong. Get it? No? Let us explain moar.

“Second, “among means intermingled with…Commerce does not stop at the external boundary lines of each State.” So, if you buy a steamboat ticket 4 a ride frum New York 2 Florida, cuz FL iz warm and NY iz 2 cold 4 whiney u, then even though that commerz started in New York, it iz interstate commerz because the end result is interstate commerz. Ok?

“Third, “can a State regulate commerce with foreign nations and among the States, while Congress is regulating it?” Yes. No probs. We kno statez can haz laws 2. But…

“Fourth, if a law frum teh Statez conflicts wit a federal law, Teh Conztitushun says that the federal law wins. Hands down. No argument.”

So to recap: Commerce is more than buying and selling things. Interstate commerce can reach inside a state. States can regulate shizz too, but only if it doesn’t interfere with federal laws.

New York’s monopoly goes against Gibbon’s federal permit, so according to points three and four, the state law loses. Monopoly over! Gibbons can haz water 2! Yay!

These definitions become really important later on. Think about it. What counts as part of interstate commerce? What is only inside a state and so is “intrastate” commerce? Can the states regulate foreign commerce too? What if a state regulation expands on a federal regulation and so they’re kinda together and kinda not?

All this and more will be shown in later installments!

And that, ladies and gents, is Teh Commerz Clawz: Gibbons v. Ogden. If you want a fairly simple version without lolspeak check out this nice brief at oyez.com.

Dean Chermerinsky isn’t just wrong, he’s dangerously so.  The point of the commerce clause was to stop trade barriers and warfare between states and between the US and foreign powers.

Everyone seems to understand that allowing judges to make decisions based on a loose interpretation of the Constitution can lead to a “legislate from the bench” mentality. It places the will of the people and their elected representatives beneath the desires of a handful of federal judges. We have learned, over the years, how this type of legal reasoning can force unpopular legislation on us in areas such as religious expression, regulation of “hate” speech, affirmative action, abortion, and other social policies. We allow them to be the final voice in all matters. Nine imperfect people. The only means we have, to keep their power under control is the Constitution. When we allow them to value their own feelings or empathy for others over the law, they cannot be objective and we are left at their mercy. While most of us seem to understand the potential for corruption in this area, there is another aspect that I believe we have overlooked. Judicial activism has not only led to a weakening of checks against the judicial branch, it has also led to a weakening of checks against the legislative and executive branches. I believe that the trend towards empathetic interpretation is largely responsible for the recent government interference in private businesses. In the coming weeks, I would like explore the events that have led us to such a place. I will attempt to show that our problem with big government started as a problem with bad judges.

Original Restraints

Commerce Clause

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”- James Madison

The Commerce Clause (Article 1 Section8 Clause3) in the Constitution allows for Congress to regulate commerce between states, with foreign nations, and with Native Americans. Before we go any further we must understand the meaning of “interstate commerce.” When the clause was originally written, there was fierce debate between Federalists and Anti-Federalists. Anti-federalists were fearful of a central government abusing this clause and becoming intrusive. The Federalists believed that this clause was necessary (and would not be abused due to the specific language) to prevent the abuses caused by protectionists tendencies of some states under the Articles of Confederation. In the course of their discussions, they often used the words trade and commerce interchangeably. Commerce was a word that described buying, selling, and bartering. We also know that the Founders valued the rights of individuals and states far more than the powers of federal government. Both the Declaration of Independence and the Constitution, show their concern with protecting a true free-market society and preserving the powers of each state. We can conclude that the power to regulate interstate commerce refers to mediating trade practices between states. It exists to prevent one state from practicing abusive trade with another state (ex.: A coastal state would not be able to abuse a landlocked state by charging outrageous taxes for goods that arrive from Europe.) It does not grant the federal government the power to regulate any and all industry within our borders.

Necessary and Proper Clause

The Necessary and Proper Clause (Article 1, Section8, Clause 18) states: “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing (enumerated) powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Simple Enough. Congress can pass laws, which will assist members of the government in carrying out powers that were specifically granted in the Constitution. Period.

The First Perversions

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”-Tenth Amendment of the United States Constitution

Both the Commerce Clause and the Necessary and Proper Clause, deal with the powers of Congress. The expansion of powers based on these clauses, however, came from the judiciary branch.

Gibbons v. Ogden 1824

Thomas Gibbons was a steamboat operator. He had received a license from Congress to carry out the coasting trade. The State of New York had granted a small group of investors the sole right to operate steamboats in New York. Aaron Ogden was a steamboat operator working for this group. When Thomas Gibbons was denied the right of passage into New York, he filed a lawsuit against Ogden. Ogden’s side claimed that as long as he kept his operations inside New York, Congress had no right to interfere. Gibbon’s side claimed that the state of New York was prohibiting interstate trade by restricting the transportation of goods between states. The court sided with Gibbons. The State of New York may have indeed, impeded interstate trade. And while the ruling itself, may have been justified, the expressed reasoning behind the ruling was a bit sloppy to say the least. The Justices decided that commerce “among the states,” could be interpreted as commerce “intermingled with” other states. Chief Justice Marshall believed that since transportation was necessary for trade, transportation from one state to another should be considered commerce, not that only transportation which directly influences trade should be considered commerce. The court effectively changed the meaning of the Commerce Clause from the government having the power to mediate trade disputes between states, to the government having the authority to regulate any form of trade or movement that affects multiple states. This was the first step in the expansion of federal control over private industry.

Interstate Commerce Act of 1887

In 1887, the Interstate Commerce Act was passed. This act created the Interstate Commerce Commission, the first true national regulatory agency. Citing the decision in Gibbons v. Ogden, the agency would oversee the railroad industry, focusing primarily on shipping rates. At this point, the federal government had switched from merely mediating disputes between states, to regulating an industry.

Houston E.& W. T. Ry.Co. v. United States 1914

The Houston Railway Company managed an interstate railway that ran primarily through Texas, but also into Shreveport, Louisiana. They charged one rate for shipping that remained within the state, and a higher rate for shipping products across state lines. After the Railroad Commission of Louisiana filed a complaint, the Commerce Commission stepped in. They believed that the lower rate for intrastate traffic was unfair, and attempted to force the company into raising the price to that of interstate shipping. The case went before the Supreme Court. Houston Railway argued that the Commerce Commission had no right to dictate price over the lines that ran exclusively in Texas (from Marshall to Dallas). The Supreme Court rejected this argument. They reasoned that if the intrastate lines could have any effect on the business of other states, it could be regulated by the federal government.

After the Industrial Revolution, America was a much smaller place. People traveled from one state to another more frequently, and under the new broad definition of the Commerce Clause just about every business could, in one way or another, could be considered to affect “interstate commerce.” It started in the Supreme Court with one, poorly-defined ruling. Surely the Justices involved believed they were securing “fairer” trade policies for America. However, in their attempt to level the playing field, they gave the federal government almost limitless authority over private industry. Once Congress had this new power, they would not let go easily. In the next chapter, we will see how the federal government continued to chip away at the tenth amendment, and how the Supreme Court got the New Deal rolling.