A state lawmaker in Virginia is proposing that his state adopt a plan that would exempt products made in the state from the federal government’s authority under the Commerce Clause to limit, restrict and regulate.
The plan by Delegate Mark Cole is House Bill 1438, which the Tenth Amendment Center explains is one – large – step beyond what several states already have done in adopting Firearms Freedom Act provisions.
Those plans, which were started in Montana and now have been adopted in seven other states, too, specify that firearms made, sold and kept inside a state’s boundaries are not subject to federal rules because those are supposed to apply to commerce “among the states.”
Cole’s plan specifically expands on that idea.
His plan states, “All goods produced or manufactured, whether commercially or privately, within the boundaries of the Commonwealth that are held, maintained, or retained within the boundaries of the Commonwealth shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce.”
His plan continues, “This chapter shall apply to goods that are manufactured within the Commonwealth from basic materials or parts. The authority of the Congress of the United States to regulate interstate commerce in basic materials or parts shall not include the authority to regulate goods manufactured within the Commonwealth from such materials or parts.”
Michael Boldin, founder of the Tenth Amendment Center, said over the years between Congress and the courts the definition of those issues subject to federal control because of “interstate commerce” has expanded to include everything.
“From wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries, and everything in between,” he said.
He said the arguments for such expansive controls have focused on two trains of thought. Citing research from leading constitutional scholar Rob Natelson, Boldin said one argument is that the Founding Fathers meant “all gainful economic activities” when they referred to “commerce.”
The other argument, offered by several college researchers, was that “commerce” means “any human interaction.”
“Both, however, are wrong,” wrote Boldin.
“In 2011, state legislative contacts close to the Tenth Amendment Center tell us to expect that a number of states will attempt to resist this federal overreach,” he wrote.
He said at first glance, Cole’s plan might not seem to be out of the ordinary.
“Until one spends a little time thinking about how much of our current unconstitutional federal leviathan the feds have jammed down our throats while claiming ‘interstate commerce!’ every single time,” he said.
“From Obamacare to Cap and Trade to the Controlled Substances Act – and everything in between – there are literally countless examples of how the federal government claims the right to not only regulate, but control, prohibit, and mandate under its delegated power to regulate commerce – ‘among the several states,’” he said.
But the actual words in the founding document are to regulate “commerce with foreign nations, and among the several states, and with the Indian tribes.”
“According to constitutional scholar Randy Barnett, the original meaning of ‘commerce’ was limited to the ‘trade and exchange’ of goods and transportation for this purpose. The original meaning of ‘to regulate’ generally meant ‘to make regular’ – that is, to specify how an activity may be transacted – when applied to domestic commerce, but when applied to foreign trade also included the power to make ‘prohibitory regulations.’ ‘Among the several States’ meant between persons of one state and another,” Boldin explained.
He said a simple reading of the documentation specifies that the laws of the federal government are supreme in all matters regarding the powers the Constitution delegates to the federal government.
But “when D.C. enacts laws outside those powers, state laws trump,” he said.
“By introducing HB1438, Delegate Cole attempts to place Virginia in a position of proper authority while pressing the issue of state supremacy back into the public sphere,” Boldin’s analysis said.