July 20, 2009

How can Congress get around the Tenth Amendment and regulate almost every aspect of American life?

One way is by claiming that the Tenth Amendment doesn’t apply because Congress is merely acting within the scope of its enumerated powers.  But to make this claim, one must assume that some of the enumerated powers are much broader than they really are.

One of the enumerated powers cited by advocates of the modern monster-state is the Commerce Power.  This derives primarily from two sources:

(1) the Constitution’s grant to Congress of authority to “regulate Commerce . . . among the several States” and

(2) the Constitution’s grant to Congress of authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . .”

According to promoters of the monster-state, those constitutional phrases go further than allowing Congress to regulate trade among the states.  They also allow Congress to control manufacturing, wages, agriculture, crime, mining, land use, firearm possession, and a range of other activities.

How can they justify this?  Basically, they make two arguments.  The first argument was spun during the New Deal by a University of Chicago law professor.  (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade.  Instead, he contended, “commerce” included all gainful economic activities.  Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor.  He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue.  It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

But because it is sometimes necessary to prove the obvious, several other academics (such as Georgetown University’s Randy Barnett and I) have examined literally thousands of appearances of the word “commerce” in the historical records from the Founding Era.  And those records show clearly that “Commerce” in the Constitution means trade and associated activities, but no more (e.g.,http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf).

The second argument for an almost unlimited Commerce Power currently prevails on the U.S. Supreme Court.  (Don’t let anyone tell you the present court is “conservative” on such matters.)   This argument acknowledges that when the Founders wrote “Commerce,” they meant only trade and a few allied activities, such as navigation.

But it goes on to say that modern economic life, unlike life during the Founding Era, is highly interdependent, so it is now “necessary and proper” for Congress to regulate everything that substantially affects commerce.

But this argument also ignores history.  Economic interdependence is nothing new: the promoters of the Constitution themselves emphasized it.  But they also assured the public that, interdependent or not, most activities could be regulated only by the states.

They added that the Necessary and Proper Clause added nothing to federal authority, but merely clarified that the legal “doctrine of incidental powers” applied to the Constitution.  And no power could be “incidental” if its scope swamped the principal power.  In other words, Congress couldn’t take over a big field like manufacturing or agriculture on the pretense of regulating commerce.

If the Supreme Court were doing its job in this area, it would restrict Congress to the authority granted by the people through the Constitution.  Because the Court is not doing what it should, it is up to the people to recall the federal government to its constitutional limits.