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Post Constitutional America: The Federal Government’s Abuse of the Commerce Clause



James Madison, “Father of the U.S. Constitution”

“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, Father of the U.S. Constitution 1788

“There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do.”                          –Rep. James Clyburn(D-SC) 2009

Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.”

    I would venture to say that most libertarians, constitutional conservatives and many constitutional scholars agree this is one of the most abused and misinterpreted parts of the constitution by the federal government. James Madison who helped write much of the constitution understood the true meaning of the commerce clause as well as the other representatives at the constitutional convention in 1787. The intent of this clause was to regulate trade between the states  which meant to James Madison make trade regular to prevent tariff wars and unfair trade barriers between the states.  In his own words Madison writes: “It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” The commerce clause was never meant to regulate every aspect of an American citizen’s commercial (and in today’s overreaching federal regulatory climate) private life.

For most of our nation’s history the federal courts upheld the original intent of the framers of the constitution but that started to change under President Franklin Roosevelt’s new deal during the great depression of the 1930’s. The biggest blow to the original Intent of the commerce clause was U.S. Supreme ruling in U.S. Supreme Court ruling in “Wickard vs. Filburn”  317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942).     The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. The purpose of this act was to stabilize market prices.  Filburn was a small family farmer in the state of Ohio. His farm produced 12 acres of wheat above his federal government quota. His defense was that he never intended to sell the additional wheat to anyone but to consume  it himself and to use it as feed for his animals and therefore should not be considered commerce. He was still found guilty and fined. The court decision stated that had he not grown the extra wheat he would have had to purchase wheat — therefore, he was indirectly affecting interstate commerce.   


Filburn’s farm produced 12 acres of wheat above his federal government quota. His defense was that he never intended to sell the additional wheat to anyone but to consume  it himself and feed for his animals and therefore should not be considered commerce. He was still found guilty and fined. The court decision stated that had he not grown the extra wheat he would have had to purchase wheat — therefore, he was indirectly affecting interstate commerce. The abuse of the commerce clause has been continuing ever since. Some recent examples is new regulations giving the FTC power of yard sales (See my May 3, 2010 article: “Your Not My Mother, -The Rise of the “Nanny State” in America” on this site) even though these private transactions do not cross state lines. Also the FDA has been targeting small farmers (Including the Amish) that sell raw milk to individual citizens even though the vast majority of these small transactions do not cross state lines. There is even a proposal by the Obama administration for a federal tax on car owners on the amount of miles driven. I personally think this proposal violates the commerce cause since it does not involve the sale of a commodity (Such as gasoline) that has crossed state lines. How can the federal government tax miles that are driven within a particular state? This proposal if enacted will require every car to be fitted with a tracking device to record the amount of miles driven which in my opinion is also a violation the 4th Amendment.

The most recent and most overreaching is the Health Care Reform Act otherwise known as Obama care and its  mandate for individuals to buy health insurance. This extreme view of commerce clause not only applies to some in the current congress or  president but even by some supreme court Judges. This view was expressed during a recent exchange between Senator Tom Coburn (R-OK) during a committee hearing asked now supreme court judge Elena Kagan; “do you think the government through the Commerce Clause could regulate you eat three vegetables a day?”  Her response was, yes. I can list several others here but I hope you get the point. The Federal Government current use and interpretation of the commerce clause as illustrated by Representatives Clyburn’s statement at the beginning of this article would have shocked and sickened James Madison and the other framers of the constitution.

One tiny judicial ray of sunshine that the courts might be reigning in the interpretation of the commerce clause was the decision in the U.S. Supreme Court in U.S. Vs. Lopez (1995) ruling 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).     In 1990, Congress passed the Gun-Free School Zones Act, citing its powers under the “Commerce Clause.” Namely, the possession of a firearm in a local school zone substantially affected interstate commerce. We all agree on providing a safe school environment but it is a state responsibility. How did congress justify its intervention of the federal government under the Commerce Clause?  Congress cited that violence drives up insurance rates and crime threatens the learning environment leading to less productivity. When this law was challenged whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn’t, saying, “If we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” This was the first step in reigning in the abuse by the federal government of commerce clause.

A Coming legislature Revolt by the States against Commerce Clause Abuse:

There are a few states passing “State Sovereignty Resolutions” reaffirming their rights under the 10 amendment which good first step but it does not have the “teeth” to“Punish” the federal government for overstepping its bounds under the constitution. Four states tired of the federal government ignoring the constitution are in the process this year of passing Intrastate Commerce Act. This arises from the recent abuses from both the congress  in passing last years healthcare reform bill and the rise in abuses by federal agencies in intra-state commerce under both Bush and Obama Administrations. The most recent state is Arizona with its bill (SB 1178) which will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.

The bill even goes a step further by penalizing the federal government if they violate the statute:

A. Any official, agent, or employee of the United States government or any employee of an entity providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this chapter is guilty of a class 6 felony, except that any fine imposed shall not exceed two thousand dollars.

B. Any public officer or employee of this state who enforces or attempts to enforce an act, order, law, statute, rule or regulation of the United States government in violation of this chapter is guilty of a Class 1 misdemeanor, except that any fine imposed shall not exceed five hundred dollars.

If passed by the legislature (and it looks like it will) and signed by the governor should send a warning shot to remind congress and the president that the states are sovereign entities under the constitution and not mere provinces. The very fact that we as a federal republic have gotten to this point says how far we have come from the original intent of the framers.  This should awaken every American Citizen and state government that it is our duty to reign in the power of the national government to what was intended under our constitution.

-Just my opinion –D.B.

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