Learning About The Commerce Clause

There's a room where the light won't find you
Holding hands while
The walls come tumbling down
When they do, we'll be right behind you
--Tears for Fears

Mainstream media is generally not a good resource for those seeking to learn about the Constitution. A refreshing exception is Judge Andrew Napolitano. His perspective first caught my attention years back during the 2000 election issues. He now hosts what I believe to be the only show that focuses on viewing issues thru a Constitutional lens.

This particular interview w/ Neil Cavuto is about a year old, done while the healthcare legislation was still in process.

Early in the interview, the judge observes a growing admission by some in Congress that their basic approach to creating law is producing legislative output that they think is 'right' and then leaving it to the courts to decide if their work is Constitutional. As the judge observes, such an approach seems inconsistent with the oath that each of these people took to uphold the Constitution. Why would people who promise to uphold the Constitution endeavor to produce particular pieces of legislation when it is realized, ex ante, that prospects for passing Constitional review are questionable?

This does seem to be the mindset of many w.r.t. the healthcare legislation. Some people are currently opining that this legislation was destined for a date w/ the Supreme Court from the outset.

The larger point in the interview concerns the Commerce clause, which is being employed by the Dept of Justice and other supporters of the healthcare legislation as its primary legal justification. The Commerce clause is the third item in Article 1, Section 8 which enumerates Congressional powers. It reads as follows:

[Congress shall have Power] To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.

The judge makes a number of salient points related to the Commerce clause in the interview. One is that economic exchanges between individuals and their providers are not commercial in nature (commerce being defined as large scale transactions between businesses or other large entities). Regulating such transactions is in no way what the framers intended in a Constitution meant to limit government and to preserve freedom and individual choice.

Moreover, he notes, the scope of regulating commerce, as well as other powers enumerated to Congress under the Constitution, was meant to relate to issues that were federal, not national, in scope. An excellent point and one that I had not considered previously. The intent of the Constitution was clearly to create a government that would oversee a federation of states so that state operations could proceed more effectively than they had under the previous Articles of Confederation. We 'know' this is true lest the states, who considered themselves sovereign entities, would never have all agreed to the Constitution's terms. The intent was not to marginalize state power in a manner that would make the states subservient to a nation-state central authority.

The judge observes that the purpose of regulating Commerce, according to James Madison, was to keep commerce 'regular', or flowing between the states. Although I do not have a firm citation on this (yet), my sense is that an important motivation for the Commerce clause stems from problems realized during the Articles of Confederation years, where states were raising protective tarriffs and other barriers that impeded the flow of trade. Viewed in this manner, the purpose of federal oversight can be seen as freeing up, rather than hampering, markets. Can not the Commerce clause, then, interpreted alternatively as the Free Market clause???

Parenthetically, it should also be noted that the framers continued their discussion of interstate trade in Sections 9 and 10, which as it now hits me, seemingly should be discussed alongside the Commerce clause for added meaning.

The final observation by the judge relates to the lack of interstate competition in the insurance industry. Before the judge's explanation, the issue of interstate insurance regulation had perplexed me for years. From where I sit, a no brainer for reducing health care costs has been to remove barriers that prevent insurance carriers who operate in one state from entering into markets in other states. (Indeed, as of today, it is now clear to me that the Commerce clause should require the Federal government to intervene to remove those barriers!!!) Instead, the Federal government has been condoning these trade barriers. Why? Because, as the judge notes, it permits the Federal government to get its hands on regulating insurance business. If free markets were permitted, competition would drive down prices and raise quality--and the Federal government would have nothing to control--i.e., the Federal government would lose power.

This was a very enlightening interview--one that I listened to about a dozen times in order to completely absorb the thoughts.

I should note that on the judge's show last nite, he ended with a quick note on the Commerce clause (I looked for the video clip on line but couldn't locate it). The judge observed that the case that made the Commerce clause an operational instrument in Big Government's toolbox was Wickard v Filburn 1942. Filburn was an Ohio farmer who was growing wheat to feed his chickens. Because the Federal government had imposed limits on wheat production to fix prices artificially high during the Great Depression, Filburn was ordered to burn his crops and pay a fine, even though he was not growing his wheat to sell (never mind the issue of selling across state lines).

The case went to the Supreme Court who ruled in favor of the Federal government. The court stated that because Filburn grew his own wheat, he would buy less. Because wheat was traded nationally, his reduction in demand would impair Federal activities to fix the price.

Surely, such a perverse judicial interpretation the framers never imagined.

It is perversion of the Commerce clause, as well as the General Welfare and Necessary and Proper clauses, that makes these items a tool of the State and a threat to liberty.