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Wednesday, February 01, 2012

The Supremes in Wonderland

To prepare for oral arguments on the constitutionality of ObamaCare the justices should reread the constitution. A review of the opinions issued on cases involving the Commerce Clause could lead one to conclude that the justices have forgotten there is such a thing as a constitution and now believe they are guided only by the opinions of the court issued in the last 80 years. Either that or they all see themselves as Humpty Dumpty sitting on a wall and declaring "When I use a word, it means exactly what I mean it to mean, no more and no less."
The constitution was ratified on September 13, 1788. It granted to congress the power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

For a hundred years after ratification it was understood that commerce meant the exchange of goods and the channels and instrumentalities that made the exchange possible. It was understood that Congress could regulate this commerce between one or more states. It was understood that Congress could not regulate the wholly internal commerce of a state. It was understood that commerce was not agriculture, manufacturing, etc. It was understood that the purpose of giving congress this power was to expand and strengthen our economy.
This understanding was reflected and underscored in Supreme Court opinions over the next 100 years.

Today, that simple phrase “regulate commerce among the several states” has been rewritten by the Supreme Court to read “everything including noneconomic intrastate activities.” The purpose of the commerce clause has been altered from expanding and strengthening our economy to coercing personal behavior to conform to the dictates of congress.

From Gibbons v Ogden (1824), through Brown v Maryland (1827), to US v DeWitt (1869) and US v EC Knight (1895) and Hammer v Degenhart (1918) the original intent and meaning of the Commerce Clause was upheld.
The Commerce Clause was “a virtual denial of any power to interfere with the internal trade and business of the separate states.” Congress cannot “forbid commerce from moving, and thus destroy it as to particular commodities.” The Supreme Court definitively said "When the commerce begins is determined not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state." Finally “The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power over local trade and manufacture.”

The passage of the 18th Amendment removed all room for disputing that the power granted to congress under the Commerce Clause was limited. This amendment banned the “manufacture, sale, transport, import, or export of alcoholic beverages.” This amendment would never have been passed by congress, nor ratified by the states, it would have been wholly unnecessary and redundant, if Congress already had the power to regulate these things under the Commerce Clause as later decisions would claim.
The last gasp of the original intent and understanding of the Commerce Clause came in 1936 with the decision in Carter v Carter Coal Co. The court held that the Guffey Coal Act, which intended to regulate prices, wages, hours, and “fair practices” in the coal industry, was unconstitutional as it exceeded the power granted to Congress.
President Roosevelt launched his attack against the Supreme Court at the beginning of his second term in 1937. The court began to contradict it's Commerce Clause rulings of the previous 100 years.
In 1937, with NLRB v Jones and McLaughlin Steel, the court added words to the constitution to claim congress could regulate things that “affect commerce.” With the 1941 US v Darby Lumber opinion it said congress could regulate terms of employment such as wages and hours.
The distortions morphed into insanity with the Wickard v Filburn case of 1942. Filburn was a small farmer in Ohio who planted 12 acres of wheat for his own use. He did not sell the wheat. Nevertheless the court held that Filburn's punishment under the Agricultural Adjustment Act was constitutional. The court held that the federal government had the power, no where mentioned in the constitution, to fix prices. The court's justification was that even though what Filburn was doing was production and not commerce, and even though his actions were purely local and internal to Ohio, if he were permitted to grow what he wanted, then others would be able grow what they wanted, and if all these decisions were added up, they would then have an “affect” on interstate commerce. Alice, welcome to Wonderland.
The last commerce clause case of significance was Gonzales v. Raich in 2005. Here the court dove headlong into Alice's Wonderland when it ruled that the federal government could criminalize the local cultivation and possession of marijuana which was regulated internally by the state. The court actually declared that Congress can regulate “noneconomic intrastate activities.” Whatever one thinks of that idea it is impossible to derive it from the constitution. Unless you are Humpty Dumpty in Alice's Wonderland and words mean whatever you say they mean.


Justice Scalia threatened to bring rationality and lucidity to the court's analysis when he noted that activities which only affect interstate commerce are not themselves interstate commerce and therefore cannot be regulated pursuant to the Commerce Clause. Then he dove back through the Looking Glass.
Scalia opposed the use of marijuana for medical purposes and had to devise a rationale to justify his ruling. He wasn't dishonest enough to claim the Commerce Clause granted congress the power they wanted. Grasping at straws, Scalia said that the Necessary and Proper Clause, which gives Congress the power to make laws which are necessary and proper to carry into execution the powers granted to it, made it legitimate for Congress to exercise powers not given to it. The mind reels. In a perfect example of cognitive dissonance Scalia then warns against doing what he just did, piling “inference upon inference” to build a justification for federal regulation of local activity. Doing do so leaves one “hard pressed to posit any activity by an individual that Congress is without power to regulate.”
The court has done exactly what Scalia warned against. It has piled up inference upon inference to justify effectively unlimited federal power and intrusion in to our lives. Under the theory supported by the court and advocated by the Obama administration there is nothing beyond the regulatory power of congress. That theory is wrong and is is not wrong not just with regard to the individual mandate. It is wrong on the idea that Congress has any power to regulate health care beyond the interstate exchange of goods.
As they prepare to hear arguments on ObamaCare the justices should put aside the opinions of the last 80 years. They should re-read the actual constitution. Any sentient being can tell you that it does not read “Congress has the power to regulate any economic or noneconomic activity.” Let us hope that these justices escape from Wonderland and return to the real world where words mean what they mean and not whatever some broken egghead wishes they meant.


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