The Commerce Clause of the Constitution is found in Article I, Section 8: "The Congress shall have Power To...regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." It is the part about regulating commerce "among the several States" that has been used to cause so much mischief. Woods explains the meaning of clause:
"Commerce" meant only trade or exchange--not, as its more ambitious interpreters have tried to claim, all gainful activity... "Among the states" meant exactly that: commerce between one state and another, not commerce that might happen to have an effect on another state. For that matter, "regulate" in the eighteenth century meant to "make regular"--that is, to cause to function in a regular and orderly manner--as opposed to the word's modern meaning that suggests micromanagement and control... Thus, the purpose of the commerce clause was to establish a free-trade zone through-out the United States (thereby making commerce regular), and prevent states from disrupting the free movement of commerce.Clearly in its original intention the clause had a very limited purpose; but it has been used as a pretext to justify just about everything the federal government wishes to do, regardless of the limitations imposed by the Constitution. Again, Woods:
By the nineteenth century, the Supreme Court was already pretending the commerce clause extended federal authority over commerce that merely affected other states... By the twentieth century this had become a "substantial effects" rule, but in practice it still allowed the federal government to control whatever it wanted. Thus the federal government claimed the power to regulate the wages of a janitor in a building whose occupants happened to be engaged in interstate commerce. In Wickard v. Filburn (1942), the Court ruled that the federal government could regulate the amount of wheat grown on an individual's farm even though the wheat never left the state, and the farmer and his livestock consumed it themselves. Had they not grown and consumed that wheat, the argument went, they might have purchased it from another state, and hence their abstention from this purchase indirectly affected interstate commerce.Unbelievable! But this is the kind of twisted logic which is regularly applied to the commerce clause. In his decision yesterday, Judge Steeh stated,
The crux of plaintiffs’ argument is that the federal government has never attempted to regulate inactivity [in this instance, not purchasing insurance--DJE], or a person’s mere existence within our Nation’s boundaries, under the auspices of the Commerce Clause. It is plaintiffs’ position that if the Act is found constitutional, the Commerce Clause would provide Congress with the authority to regulate every aspect of our lives, including our choice to refrain from acting.Precisely! And what is Steeh's response to the argument?
The Supreme Court has expanded the reach of the Commerce Clause to reach purely local, non-commercial activity, simply because it is an integral part of a broader statutory scheme that permissibly regulates interstate commerce.Got that? The Commerce Clause, meant to regulate commerce "among the several states," can be used to regulate "purely local, non-commercial activity." Go figure!
Steeh continues by noting that in previous cases, including Wickard:
The Supreme Court sustained Congress’s power to impose obligations on individuals who claimed not to participate in interstate commerce, because those obligations were components of broad schemes regulating interstate commerce.In other words, no matter how remotely a person's activity (or non-activity) might be related to interstate commerce, the federal government has a right to regulate it under the Commerce Clause. This way of handling the Constitution effectively nullifies its most basic purpose, which is to define and limit the activities of the federal government.