Death of the Commerce Clause

A century of Progressive attacks on the Constitution have come to this.  I am just going to quote Radley Balko in full:

"¦.a federal judge has just ruled that the federal government can force me to purchase a product from a private company, under the argument that my not purchasing that product affects interstate commerce.

For those of you who support this ruling: Under an interpretation of the Commerce Clause that says the federal government can regulate inactivity, can you name anything at all that the feds wouldn't have the power to regulate?

And if you can't (and let's face it, you can't), why was the Constitution written in the first place? As I understand it, the whole point was to lay out a defined set of federal powers, divided among the three branches, with the understanding that the powers not specifically enumerated in the document are retained by the states and the people.

But if that set of powers includes everything you do (see Wickard and Raich), and everything you don't do (what Obamacare proponents are advocating here), what's the point in having a Constitution at all?

Raich was bad enough.  In that case the high court said the Feds could regulate home-grown marijuana that was grown and consumed entirely in California because that activity might still affect prices in other states (presumably because Californians could have smoked imported weed if they had not grown their own).  (I can't understand how anyone can call this a "conservative" court when it handed down Raich.  Clarence Thomas wrote in Raich:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.


  1. morganovich:

    obviously, that's a terrible result.

    i wonder how much it has to do with the judge's actual view on the legal issues as opposed to his mortal terror of being the one man who took down obamacare.

    that would make him one of the biggest lightning rods in the nation.

    he may just be unwilling to handle that and therefore chose to punt the ball to the SCOTUS.

  2. Peter:

    God I hope it is the death of the commerce clause. My mining business not only doesn't sell product out of state it doesn't even sell it out of the county. As my business is on an island I am not reducing imports into the state either because that would be ridiculously cost prohibitive. Yet the government still finds that it can regulate my business under MSHA presumably under the commerce clause. They send a new inspector every year on money finding expeditions and it has become obvious that the inspectors make up new violations every year just to bring in more money. I have recently heard that they are now going to require that vehicles back into their parking spaces, honk twice before moving forward and three times before backing up regardless of the type of vehicle you are driving. (pickup truck etc) I am also to impose all of these rules on my customers. How many times am I going to get fined by the federal government because my customer won't honk his horn the correct number of times prior to moving their vehicle? I personally think that if a product or byproduct (ie emissions the real ones not CO2) does not cross state or international lines the regulations should be entirely controlled by the state not the feds. This should be true even if the original product has or eventual product will cross those lines.

  3. Henry Bowman:

    Peter (& Coyote):

    Gonzales v. Raich was indeed very bad, but there was precedent in Wickard v. Filburn (1942), a case nicely summarized by Robert Levy and William Mellor in The Dirty Dozen. Filburn was an Ohio farmer who grew, among other things, wheat. He was fined about $117 for exceeding his wheat allotment. Almost all the wheat he raised was either consumed by his family or by his livestock; a small portion of it was sold, but entirely within the state of Ohio. He fought back on the grounds that his activities did not affect interstate commerce (which was correct). The Supreme Court ruled unanimously against him.

    Balko asks why the Constitution was written in the first place. A good question, of course, but the answer from the Progressives would be simply "who cares?". They certainly do not; they are completely comfortable with a totalitarian state, as long as the right people are in charge. That's the whole purpose behind the concept of the "living Constitution"; that is, one that changes depending upon who is in charge. A living Constitution is equivalent to no Constitution at all, which is of course what the collectivists actually want.

  4. jeff:

    The Government of "limited and enumerated" powers died with Wickard. The only way we'll get it back is via Constitutional Convention or revolution.

  5. caseyboy:

    What would you expect from a Clinton appointee? He wouldn't dare rule against the ruling class.

    Henry is correct, the slippery slope can be traced to Wickard v. Filburn. Want to guess who appointed most of those justices (hint FDR).

    Peter, the Commerce Clause hasn't been struck from the Constitution it has just been amended by judicial fiat. Now it can mean whatever the progressives want it to mean.

    Our Founders gave us a "Living Constitution" since they specified an amendment procedure. The problem is that progressives know they cannot muster the popular vote to move their agenda so they worked on stacking the courts with their minions.

    In a way I'm happy we've experienced the Triumvirate of Obama, Pelosi and Reid. They have awakened people to the fact that freedom is not automatic and that our elected politicians don't always have our best interests at heart. Did we catch it in time?

  6. mangyredbonehound:

    This district court opinion does not really matter very much in the long run, fortunately. There are several more district court decisions to come, and the cases will then slowly climb the ladder through the Circuit Courts of Appeals before most of them land in a heap at the Supreme Court.

    As others have noted in this thread, the Commerce Clause has been abused until it is completely FUBAR, at least from the perspective of the Founders who drafted it. It would be a huge victory if the Supreme Court were to finally decide that it imposes some meaningful limits on congressional power, which it was clearly intended to do.

  7. dearieme:

    Your great experiment in constitutional government had a pretty good run. Nothing lasts forever.

  8. Ted Rado:

    I have been concerned for several decades about the steadily expanding role of government in our lives. This has gone on under both Democrat and Republican administrations. It has grown tremendously under the present administration.

    The urge of many to play Napoleon seems overwhelming. "I am so smart I know how to run your life better than you do". Anyone who has been in a small organization (homeowners assn., professional societies, sporting clubs, etc.) is familiar with the individuals and cliques who want to run the show.

    The Constitution was written to avoid this: leave everyone alone to do their own thing as they see fit, provided only that they do no harm to others.

    Any criticism of government programs is met with "you want old ladies to starve", "you want to ruin the environment", etc. Rational discussion of the costs, benefits, limited resources, etc. is shouted down. Dissenters and questioners are demonized.

    I don't know how we roll back this government avalanche, but if we don't, we are headed for an elected dictatorship. You will need a government permit to scratch your back (dander, you know).

  9. Mesa Econoguy:

    What this potentially does is set up a Constitutional Convention - if Repubs win enough gubernatorial races, and enough states pass Prop 106-like legislation (don't have the numbers, but several already have, and many more are on the ballot next month), that sets up an epic states rights fight.

    If the courts refuse to acknowledge the absurdity and unconstitutionality of governing economic inactivity, then we will go around the courts. Or we will just ignore them (nullification).

  10. John Moore:

    If you want to see this nonsense defended, just look in the comments section of The Volokh Conspiracy, a libertarian legal blog with a wide diversity of commenters. A lot of lawyers worship the Supreme Court, and treat is dicta as if handed down from heaven on stone tablets.

    Also, note that once again, Justice Thomas shows that he is, by far, the most significant judge on the bench.

  11. Doug:

    THAT Uncle Tom Clarence Thomas? Who takes what he has to say seriously? (sarc/off)

    As for the "living and breathing Constitution" line, I'm reminded of something I heard Walter E. Williams say some time ago. It goes approximately like this: the boys and I are having a card game on Saturday night, and you're invited. We play by Hoyle, but it's a living and breathing Hoyle. You're invited, and bring lots of money."

    What good are rules if rules don't mean anything?

  12. Noumenon:

    Man, you have a string of really depressing posts today. Really interesting and persuasive, but sad.

  13. joshv:

    I would certainly support a constitutional amendment to clarify the meaning of interstate commerce. Apparently the founding fathers foolishly thought the literal meaning of the words 'interstate commerce' was sufficient.

    One problem is that there are many good results built on top of the commerce clause (whites only lunch counters were ruled unconstitutional because it affected truckers who drove interstate) - so we'd also need to codify those results in such an amendment as well so that bozos would not go out and try to open whites only lunch counters. But I think it could be done, and I think there is a need to freshly delineate the separation of powers.

    What progressives want is to impose their agenda on all the states and the Constitution is a barrier to that. What conservatives want is to run their states as they see fit. The progressive agenda precludes the conservative agenda, but not vice versa. Let progressives have universal health care and single payer - in the states where they are the majority. More power to them. But let conservatives run the states where they are the majority as they see fit.

  14. caseyboy:

    I'm afraid the valid arguments for state's rights were undermined by the South's refusal to recognize a core principle of our founding documents, that all men are created equal. Their insistence on preserving slavery, an immoral position, drove the nation apart resulting in tremendous loss of life. The loss of life and treasure was high, but we also lost an important tenant of our founding, i.e. state's right. How could the feds let the state's set their own agenda if they were capable of such a despicable practice as enslaving others?

  15. Craig Burton:

    "A century of Progressive attacks on the Constitution have come to this."

    I don't see this as a Progressive/Conservative issue. I see this as the result of a century of Corporate influence of our political process, culminating in the creation of Corporate Personhood.

    And we've got to hand it to the corporations - as long as their 'spin' makes this a liberal/conservative or progressive/conservative battle, the people will waste all of their time and energy fighting against one another instead of realizing the true source of the problem: Corporate Personhood.

  16. ilovebenefits:

    Which sunglasses would you like... oh yeah... you will buy the government issue.

  17. markm:

    Henry: Raich went one step past Wickard. The agricultural allotment law upheld in Wickard had an exemption for small personal-use quantities. It recognized that there were cases too trivial for federal regulation, although IMO it set that boundary far too low. (It was also blatant economic idiocy, but that's a policy issue rather than a constitutional one.)

    The laws upheld in Raich have no lower bound; a single seed, a tiny fragment of leaf or stem, or one grain of dust can be grounds for federal prosecution.

    Additionally, IMO there's a far greater privacy issue in drug laws than there is in agricultural regulation.

  18. morganovich:


    i think you hit on an interesting point, but perhaps miss a pivotal issue:

    doing the right thing using the wrong rationale is very dangerous.

    you wind up with a lot of nasty, unintended side effects. framing slavery as a states rights issue as opposed to a human rights issue is an excellent example. clearly the framers did not mean all men when they said "all men" but at the end of the day, the whole argument about what "all men" meant is not really a states rights issue at all any more than habeus corpus is.

    we have seen numerous other examples of bizarre legal rationales (liek roe v wade) that, while i agree with the outcome, were gone about in the wrong way and are still an ugly legal and political football to this day.

    another ugly knock on effect is the whole "evolution in schools" issue. while i certainly do not believe in creationism nor do i think it ought to be taught as science, the manner in which such teachings have been suppressed has concentrated a great deal of federal power over schools. so, we avoid the creationist doctrine, but at the expense of eliminating the sort of curriculum flexibility that turned the schools in finland from among the worst in europe to among the best. is the suppression of this one doctrine really worth driving the rest of the curriculum into mediocrity and preventing it from evolving? the irony that suppressing creationism blocks evolution in curricula is pretty rich.

    sure, you can prevent insect infestation by destroying all the trees, but are you really better off?

    this is the danger inherent in using apparently narrow legalistic arguments in a system such as ours that runs by precedent. a bad argument, even if it yields the result you want, is very likely to have nasty side effects and unintended consequences. it's not enough to get the "right" result, you have to get to it the right way else risk doing a great deal of harm elsewhere.

    arguments like "well who could be pro slavery" are seductive in that, at least now, there is pretty universal agreement, but getting to the result the wrong way suddenly has lots of other effects.

    this is what makes me favor a very narrow constructionist approach to interpreting the constitution. the side effects of using tortuous and creative logic can very easily outweigh the benefits.

  19. Val:

    Caseboy... The next step in that logic would seem to indicate that the rights of nations can longer be trusted to them... In fact, I am quite sure that is the predominating view in such bodies as the u.n. when it comes to the United States. So, how to remedy? Another step up? Observe the euros attempts to control members of nato that with the haggling over the new nato mission statement. Well then, perhaps a one world government? And then, of course, that couldn't really be trusted either. Hmmm...

  20. Ted Rado:

    Perhaps we need more amendments to the Constitution to clarify some of these points. Regardless of one's views on current issues, the currently overused idea of twisting the meaning of the Constitution is dangerous. For example, opponents of the Second Amendment argue that the clause refering to the militia means that you can only carry a gun if you are in the mulitary. By similar twisted logic, one could argue that the first amendment only grants freedonm of the press, thereby allowing the government to control rights re TV, internet, and other modern means of mass communication.

    Those pushing government control of things they personally oppose should bear in mind that some day there will be others in power who want to contol things that they favor. Clearly, it is much better to strictly
    adhere to the Constitution and amend it as required rather than twist it to justify the idea du jour.