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If a judge can interpret the Constitution or laws to mean something obviously not intended by the original makers … then the nation’s Constitution and laws are meaningless.

~ Lawrence P. McDonald, “We Hold These Truths” (1976)

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. … If there should happen to be an irreconcilable variance between the two, that which has the superior obligation … the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

~ Alexander Hamilton, Federalist No. 78

With the exception of the Religion Clauses of the First Amendment, perhaps in the history of American constitutional law has so much mischief been wrought by the Supreme Court than in Article I, Section 8, Clause 3, the so-called, “Commerce Clause.” On Feb. 5 of this year, President Bush submitted to Congress a $2.9 trillion dollar budget, most of whose spending is possible due to a perverse interpretation of the Commerce Clause over the past 70 years dating book to FDR’s first term (1933) and his socialist take over of government called the New Deal.

Like all constitutional law, in the beginning it all seemed so simple, so sublime, so logical – but as time passed, Machiavellian presidents, ambitious congressmen, activist judges, humanist academics and the ubiquitous “special interest groups” all had a hand in perverting the original intent of the Constitution.

Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, gives authority to the United States Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s all it is, dear reader, 16 words.


Since the ascendancy of FDR and socialism in early 1930s, the application of the Commerce Clause by Congress to justify its legislative power over every conceivable interstate transaction has flourished virtually unabated. Using these simple 16 words above, the Commerce Clause has greatly shifted the balance of power from the individual states and We the People to the federal government. This shift in the balance of power has had dire consequencies on the daily lives of the average U.S. citizen.

Marbury v. Madison and the Garden of Eden

How did America get to such a broad expansion of the Commerce Clause? Like Adam and Eve in the Garden of Eden, this treachery against the Constitution begain long ago. This perverted understanding of the Constitution was started by Justice John Marshall in the famous case Marbury v. Madison (1803) where Justice Marshall greatly expanded a power the Court implicitly possessed, but after Marbury would now be essentially unlimited. This power is often referred to by legal scholars as “judical review.”

Prior to Marbury, judges could of course interpret a federal statute the legislature passed or an executive order the president enacated, to make certain it was in acordance with the Constitution, but now under Marbury, not only could the Court decree what the law is but what it ought to be. The power of the Court was greatly expanded and would find fertile ground in the heretofore little used Commerce Clause. A judge, now armed with this newly created power, could in essence become an unelected Super Legislator, or what legal philosopher Ronald Dworkin calls, “Hercules.”

It didn’t take long for Marshall’s expansionist view of judicial review power to germinate. In Gibbons v. Ogden (1824), now-Chief Justice John Marshall expanded Congress’ power to regulate interstate commerce even more to include the power to regulate interstate navigation. Marshall writes:

Commerce undoubtedly is traffic, but it is something more – it is intercourse. … [A] power to regulate navigation is as expressly granted, as if that term had been added to the word “commerce.” … [T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines.

In complicity with the two great social movements of the late 19th and early 20th centuries – the Industrial Revolution and Progressivsm – the judiciary expanded the powers of the Commerce Clause ever the more. For example, in Swift v. United States (1905), the Court helded that the activity of the meatpackers fell under the jurisdiction of the Commerce Clause, despite the fact that their activity was geographically “local.” Nevertheless, the Court reasoned that this activity had an significant relation on the “current of commerce” and thus could be regulated under the Commerce Clause. The Court’s decision made unconstitutional the monopolist practices of price fixing.

The Commerce Clause has been strectched so far that by the case of Stafford v. Wallace (1922), the Court affirmed a federal law regulating the Chicago meatpacking industry even though these businesses were only native to the city of Chicago. The Court in Stafford reasoned that the stockyards “are but a throat through which the current (of commerce) flows,” and that the stockyards were “great national public utilities.” This type of sophistic jurisprudence is beyond the pale!

Not until the United States. v. Lopez (1995) and later United States v. Morrison (1995), did the Court under Rehnquist narrow the seemingly invincible Commere Clause. Chief Justice William H. Rehnquist delivered the opinion of the Court in Lopez and ruled that Congress had the power to regulate only three areas: 1) the channels of commerce, 2) the instrumentalities of commerce, and 3) action that substantially affects interstate commerce. Critics call this new interpretation of the Commerce Clause that returns power to the states a “new federalism.”

A year after the Lopez decision, the Court found in Seminole Tribe v. Florida, 517 U.S. 44 (1996) that, unlike the 14th Amendment, the Commerce Clause does not give the federal government the power to abrogate the sovereign immunity of the states. Justice Thomas particularly has championed this strict interpretation of the Constitution’s interstate Commerce Clause and favors limits on the power of federal government in favor of states’ rights.

Finally, after 70 years of liberalism and activist jurisprudence, the Court seems poised to return some type of reasonableness and sanity to the heretofore ungainly and intractable Commerce Clause. Let’s hope that the Roberts Court will continue this trend to limit congressional and judicial power over We the People.



Related special offer:

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

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