Interstate Commerce Clause

[nickcoons]

It is said that Congress has distorted the "Interstate Commerce Clause" to justify that passage of many of the laws now on the books. For instance, they apply the federal minimum wage to any worker that is involved in a company that does business that crosses state lines. But I believe that they have done even more than that.

Going through the Constitution, I can't actually find such a clause. The only reference to "commerce" is in Article I Section 8:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

(there is another one in Article I Section 9 placing limits on the control of ports, but that's unrelated).

"The regulate Commerce with foreign Nations, ..., and with the Indian Tribes" seems pretty straight-forward to me. But "and among the several States" is where I have a problem with Congress' interpretation. To me, this means that if the government of Arizona were engaged in commerce with the government of California that the federal government could step in and regulate that transaction.

What it does not say is this, "To regulate Commerce... among the people of the several States," so if the people of Arizona wanted to engage in commerce with the people of California, I don't see that this clause gives the federal government the authority to regulate that commerce. And if that's the case, it looks like there is no "Interstate Commerce Clause", which is often referred to.

If my interpretation of this is wrong, please let me know.

 

[SuMuKong]

countervailing argument

It is said that Congress has distorted the "Interstate Commerce Clause" to justify that passage of many of the laws now on the books. For instance, they apply the federal minimum wage to any worker that is involved in a company that does business that crosses state lines. But I believe that they have done even more than that.

Going through the Constitution, I can't actually find such a clause. The only reference to "commerce" is in Article I Section 8:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

(there is another one in Article I Section 9 placing limits on the control of ports, but that's unrelated).

"The regulate Commerce with foreign Nations, ..., and with the Indian Tribes" seems pretty straight-forward to me. But "and among the several States" is where I have a problem with Congress' interpretation. To me, this means that if the government of Arizona were engaged in commerce with the government of California that the federal government could step in and regulate that transaction.

What it does not say is this, "To regulate Commerce... among the people of the several States," so if the people of Arizona wanted to engage in commerce with the people of California, I don't see that this clause gives the federal government the authority to regulate that commerce. And if that's the case, it looks like there is no "Interstate Commerce Clause", which is often referred to.

If my interpretation of this is wrong, please let me know.

Your interpretation of the text would be very radical. I would argue that "Commerce . . . among the several States . . ." refers to all commerce among the States, which would include transactions whether the party was a State or an individual.

 

[Gilby]

Your interpretation of the text would be very radical. I would argue that "Commerce . . . among the several States . . ." refers to all commerce among the States, which would include transactions whether the party was a State or an individual.

So, if two consenting people agree to engage in commerce, and such commerce does not harm another's property, would it not be a violation of property rights (the law) for some other person or organization (such as the government) to regulate that commerce without the agreement of these two people?

 

[SuMuKong]

So, if two consenting people agree to engage in commerce, and such commerce does not harm another's property, would it not be a violation of property rights (the law) for some other person or organization (such as the government) to regulate that commerce without the agreement of these two people?

That depends whether you are asking if it should be a violation or whether it is a violation of the law.

Obviously, under current circumstances, it is (see, e.g. drug and prostitution statutes, general taxation on transactions).

Whether it should be is a deeper question that further turns on your interpretation of the relationship between a Sovereign and its constituents.

 

[Gilby]

That depends whether you are asking if it should be a violation or whether it is a violation of the law.

Obviously, under current circumstances, it is (see, e.g. drug and prostitution statutes, general taxation on transactions).

Whether it should be is a deeper question that further turns on your interpretation of the relationship between a Sovereign and its constituents.

The sovereigns are the ones who own the properties that are being used. In a free society, another person can not own another person.

So, let's assume liberty.

 

[jabrownie]

It is said that Congress has distorted the "Interstate Commerce Clause" to justify that passage of many of the laws now on the books. For instance, they apply the federal minimum wage to any worker that is involved in a company that does business that crosses state lines. But I believe that they have done even more than that.

Going through the Constitution, I can't actually find such a clause. The only reference to "commerce" is in Article I Section 8:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

(there is another one in Article I Section 9 placing limits on the control of ports, but that's unrelated).

"The regulate Commerce with foreign Nations, ..., and with the Indian Tribes" seems pretty straight-forward to me. But "and among the several States" is where I have a problem with Congress' interpretation. To me, this means that if the government of Arizona were engaged in commerce with the government of California that the federal government could step in and regulate that transaction.

What it does not say is this, "To regulate Commerce... among the people of the several States," so if the people of Arizona wanted to engage in commerce with the people of California, I don't see that this clause gives the federal government the authority to regulate that commerce. And if that's the case, it looks like there is no "Interstate Commerce Clause", which is often referred to.

If my interpretation of this is wrong, please let me know.

You did cite to the correct portion of the Constitution....now if you want to try to wrap your mind around how messed up and out of context the courts have taken it, here's one example:

A guy grows wheat, on his own property, for his own consumption and that of his animals. He is not going to sell any of it. Congress had a law regulating how much wheat anybody could grow. He is charged with breaking this law and challenges it, questioning Congress' power to make such a law. The courts reason that if he had not grown his own wheat for his personal use, than he would have had to purchase wheat from the market. This would have increased demand, and therefore effected wheat prices, albeit in a miniscule way. This, tertiary relationship, however, was deemed sufficent to say that Congress was 'regulating commerce between the states', and was therefore within their 'commerce clause' powers.

Complete b.s. to me. What's even more amazing is that the above case (Wickard v. Filburn) was a UNANIMOUS court decision. Sadly, there are a million and one examples like this.

 

[Fox McCloud]

so, would Congress' ban of the incandescent lightbulb by 2012 be unconstitutional then?

 

[Tidewise]

We were very fortunate to have a series of 5-4 decisions over the last 12 years that finally put some limits on the commerce clause for the first time in 70 years. See US v. Lopez:

http://en.wikipedia.org/wiki/United_States_v._Lopez

and US v. Morrison

http://en.wikipedia.org/wiki/United_States_v._Morrison

Few people realize how close we were to the complete obliteration of State sovereignty under the guise of the Commerce Clause.

 

[specsaregood]

I had a Business Law professor a few years ago that boldly stated, "99% of the laws passed by our Federal Government are unconstitutional and only get through using a perverted interpretation of the Interstate Commerce Clause." It blew my mind at the time.

 

[nickcoons]

Your interpretation of the text would be very radical.

"Radical" in the sense that it's a blatant misinterpretation, or that it doesn't fit the interpretation that the establishment has given it?

I would argue that "Commerce . . . among the several States . . ." refers to all commerce among the States, which would include transactions whether the party was a State or an individual.

I would also argue that the "Commerce ... among the several States ..." refers to all commerce among the States. If it said "Commerce ... among the people ..." then I would agree with your interpretation.

 

[SuMuKong]

"Radical" in the sense that it's a blatant misinterpretation, or that it doesn't fit the interpretation that the establishment has given it?



I would also argue that the "Commerce ... among the several States ..." refers to all commerce among the States. If it said "Commerce ... among the people ..." then I would agree with your interpretation.

Whenever you use a textual intepretation, one of the first steps is to ask what the common usage of the phrase would entail.

If you replace "Commerce . . . among the several States . . . " with "Commerce among Russia, China, and the United States," it's going to be hard to argue that the common-usage refers solely to the governments of Russia, China, and the United States.

The same reasoning applies to the States.

 

[SuMuKong]

so, would Congress' ban of the incandescent lightbulb by 2012 be unconstitutional then?

No, it would be constitutional under current jurisprudence.

 

[Fox McCloud]

I'm talking about in regards to the way a strict Constitutionalist would view it; not the current [insane] judiciary.

 

[SuMuKong]

I'm talking about in regards to the way a strict Constitutionalist would view it; not the current [insane] judiciary.

How strict? Even conservative justices like Scalia and (the late) Rehnquist probably wouldn't strike down the application of federal law to something like a lightbulb, especially if the statute has a jurisdictional hook (e.g. "all lightbulbs shipped in interstate commerce . . ." etc.)

 

[Gilby]

Whenever you use a textual intepretation, one of the first steps is to ask what the common usage of the phrase would entail.

If you replace "Commerce . . . among the several States . . . " with "Commerce among Russia, China, and the United States," it's going to be hard to argue that the common-usage refers solely to the governments of Russia, China, and the United States.

The same reasoning applies to the States.

It all comes down to what law is and who the constitution is binding upon? Can someone else make a contract that is binding on someone else that did not participate and agree to it? In a free society, no, they can't. So is this supposed to be a free society, or are we all serfs?

 

[XNavyNuke]

It is said that Congress has distorted the "Interstate Commerce Clause" to justify that passage of many of the laws now on the books. For instance, they apply the federal minimum wage to any worker that is involved in a company that does business that crosses state lines. But I believe that they have done even more than that.

Going through the Constitution, I can't actually find such a clause. The only reference to "commerce" is in Article I Section 8:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;".

Nick,

I suggest that you take a look at this article by Sheldon Richman. The Commerce Clause: Route to Omnipotent Government

XNN

 

[demolama]

I had a Business Law professor a few years ago that boldly stated, "99% of the laws passed by our Federal Government are unconstitutional and only get through using a perverted interpretation of the Interstate Commerce Clause." It blew my mind at the time.

He is absolutely right... we can thank FDR for that... he changed the clause to mean that if you or I grow our own vegetables we interfere with commerce because we are not buying vegetables from others. This opened the door for anything and anyone can be regulated because something somewhere we do effects commerce.

It was understood at the drafting of the Constitution that there was a difference between commerce, agriculture and manufactuing. In fact, Alexander Hamilton repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors all through out the Federalist papers.

Basically the clause was meant to make sure one state doesnt unfairly compete with another. You have to remember that during the Articles of Confederation days each state was battling eachother for foreign trade and trade among eachother. Each state was a nation onto itself and just like all foriegn nations they compete for exports and imports... hurting eachother and crippling the economy in the process.

Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade. Any attempt at regulating how, what, who, where, when,etc within the state before it is transported and becomes commerce is unconstitutional.