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October 08, 2010

The Commerce Clause: Is There Anything It Can’t Do? (Plus Book Excerpt!)

Yesterday a federal judge in Michigan, in a ruling finding federal health care mandates constitutional, took an expansive view of the powers granted the government under “the commerce clause,” and by “expansive view,” we mean “they can do anything they want.”

What do you know, Congressman Pete Stark was right after all!

Out: Commerce Clause.
In: Everything Clause!

I thought this might be an appropriate time for a book excerpt from the upcoming, “Planet Moron, How Faux Intellectuals, Hubris, and A Fear of Freedom Mongering Threaten Life, Liberty, and the Pursuit of the Perfect Martini,” that addresses the magical mystical commerce clause. 

This is from Chapter 12, “Fabricated Complexity,” the premise of which is that one way to keep the masses in line is to make them believe they couldn’t possibly understand things that are in fact easily understood:

Chapter 12 (Excerpt)

Fabricated Complexity

…As I have already readily conceded, none of this is to suggest that when it comes to interpreting the Constitution you don’t want to hire people with a superior talent to do so on your behalf, but it is quite a leap from there to this:

 “Justice Holmes explained that when it came to ‘the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.’ (“Master, it’s alive!”) Holmes decided that the decision had to be made ‘in the light of our whole experience and not merely in that of what said a hundred years ago.’”3

The notion that the meaning of the Constitution should be what the Founding Fathers would have meant had they been as smart as modern lawyers really gained traction during The Great Depression.

A book co-written in 2009 by Goodwin Liu, (as of this writing, a nominee for the 9th Circuit Court of Appeals), notes that:

“Until 1937, two lines of judicial doctrine often prevented government from responding to pressing economic problems.”4

This “judicial doctrine,” was, of course, based on the old-fashioned notion that easily understood words were easily understood:

“Before 1937, the Supreme Court often applied the federalism principle by adhering to the eighteenth-century understanding of the term ‘commerce.’ As Justice Thomas has explained, ‘[a]t the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes. . . . [T]he term ‘commerce’ was used in contradistinction to productive activities such as manufacturing and agriculture.’ Applying this definition, the Court repeatedly struck down federal regulation of manufacturing, mining, agriculture, and other ‘local’ activities on the ground that they occurred “prior to” commerce and affected commerce only ‘indirectly.’”5

That antiquated eighteenth-century understanding of the term “commerce” also happens to be the very modern twenty-first-century dictionary understanding:

The exchange or buying and selling of commodities on a large scale involving transportation from place to place.”6

But that’s too straightforward for Mr. Liu.  It’s better if we have lawyers make up new, improved definitions that only apply to them and that only they can understand.

And while Mr. Liu may have slept through his Early American History classes, it should be noted that “manufacturing, mining, agriculture, and other “local activities” existed in the eighteenth century and so were not new and alien concepts wholly unfamiliar to the people who wrote the Constitution.

So what was the problem? According Liu and his co-authors:

“Under this reading of the Commerce Clause, the federal government could not enact laws to address labor inequities or to establish minimum wages or maximum hours in vast parts of the American economy.”7

Hey, that is a problem!

“Just as narrow construction of the commerce and spending powers limited Congress’s ability to regulate the economy, so too did the Court’s construction of Fourteenth Amendment ‘liberty’ to encompass ‘freedom of contract’ disable state governments from enacting various labor laws, price regulations, maximum hours and minimum wage laws, and other economic Promoting the General Welfare regulations.”8

Wow, this freedom thing sure was gumming up the works. It’s almost as if the Constitution was designed to limit the powers of the government.

From a now-antiquated 1936 Court ruling:

“The right to make contracts about one’s affairs is a part of the liberty protected by the due process clause. Within this liberty are provisions of contracts between employer and employee fixing the wages to be paid. In making contracts of employment, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining. Legislative abridgement of that freedom can only be justified by the existence of exceptional circumstances. Freedom of contract is the general rule and restraint the exception. 9

As Liu explains:

“In these and other ways, the Supreme Court articulated a restrictive view of federal and state authority that blocked measures to reduce some of the inequities, hardships, and economically harmful conditions that accompanied the industrialization and urbanization of the economy.” 10

That damn Constitution was ruining all the fun.

There are two approaches the President and Congress could have taken to address the situation:

They could have gone through the laborious process of amending the Constitution, which would involve the messy and distasteful process of securing the consent of the governed.


They could just decide that the Constitution is in fact so impossibly complex that it doesn’t say what it says at all, but rather, says something else entirely different and no, there really isn’t any reason to trouble yourself with why, just leave that to the experts.  They went to college!

Of course, they first had to get the Supreme Court to go along, so in 1937, President Roosevelt tried to do what anyone would had they sworn a sacred oath to uphold the Constitution and its tradition of ensuring there were adequate checks and balances in place to guarantee that no single branch of government could intrude upon the liberty of its citizens.

He tried to pack the court with political hacks. 11

But, as Liu explains:

“…before its validity could be tested legally or politically, the Supreme Court handed down a remarkable series of decisions dismantling the jurisprudence that had stymied federal and state legislative action. “ 12

Hey, that is remarkable.  Not to mention wholly coincidental with presidential threats to undermine the sitting justices' authority.

Liu notes that “one leading theorist [argued] that the 1937 change was an unorthodox but valid amendment of the Constitution outside of the Article V process.” 13

You know, “unorthodox,” the way Jeffrey Dahmer had an “unorthodox” approach to menu planning.

But as Liu explains:

“Far from requiring a formal amendment to the Constitution, the legitimacy of such government action rests comfortably on a proper reading of the Constitution as written—that is, as a declaration of general principles ‘intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’14

Adapted not by you, of course.  Because once you stop seeing the Constitution as “a set of narrow legalisms”15 and instead as “an interpretation… that adapts its words and principles to the actual experiences and changing conditions facing the American people,”16 you need to hand over the work to someone else.

Of course, some sections of the Constitution were purposely left open to interpretation, such as the prohibition on “cruel and unusual punishment,” which the authors clearly preferred to leave undefined.  Other sections were much more specific and closed off (or attempted to) the kind of manufactured complexity of “interpretations” that have been forced upon it in the past 73 years.  For example, the stipulation that in order to be eligible for the Office of President, individuals must be at least 35 years old really doesn’t leave itself open to an extended debate over what the authors meant by “year.”

All of which makes the Constitution not so much a “living document,” as perhaps an undead one.

So, yes, under a proper modern interpretation, the United States of America is now governed by:

“Zombie Constitution.”

(I’m thinking George Romero to produce given his extensive experience with zombies and Scarlett Johansson in the leading role given her extensive experience being Scarlett Johansson.)

Incidentally, the reason FDR went through extraordinary measures to bend the court, and through it the Constitution, to his will was due to the fact that he:

“…saw the prospect of amending the Constitution as remote if not impossible.”17

In other words, the way in which the intellectual elite wanted to govern is something the governed would never have consented to, and in fact did not consent to over the first 148 years of the Constitution’s existence.

So the next time someone points out that your restrictive interpretation (as in restricted to the actual definition) of the commerce clause flies in the face of 73 years of Supreme Court precedent, just tell them you’ll see their 73, and raise them another 75.


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October 8, 2010 at 12:54 PM in Books, Current Affairs | Permalink


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Nice excerpt. I'll read your crappy book if you ever finish it.

Posted by: Brian C | Oct 8, 2010 8:45:41 PM

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