During the recent discussions on Health Care, one former Congressman held up a copy of the Constitution and asked the TV host, “Tell me any place in the Constitution where the federal government has the power to pass this health care bill.” The host replied that it is the Interstate Commerce clause of the Constitution that contains that power. The argument then ensued, which like most arguments on current topics, never come to a proper conclusion because most people have no idea of the origin of Constitutional principles.
Background of the Power of Congress to Regulate Interstate Commerce
One of the challenges facing the states after the Revolutionary War was raising money to pay their expenses and debts. Most states knew taxing the people would be futile because the people had no money and they had just fought a war over the subject of oppressive taxation. So some states decided to set up taxes on commerce, that is, goods coming into or leaving the state, either at the ports or the inland borders. This tactic, however, tended to set states up as individual nations rather than as a common market. It would pit state against state and would lead to discriminatory taxation on certain industries.
Virginia was one of the principal offenders in this respect. While the Constitution was up before the convention of the various states for ratification, Washington wrote to Lafayette that his own state had recently tried to pass “some of the most extravagant and preposterous edicts on the subject of trade” that had ever been written.
But the other states were also gouging their neighbors with discriminatory regulations of commerce. Rhode Island , for example, met all of her expenses out of duties levied at one port where commerce had to enter from other states. New York also demanded oppressive duties on all imports coming through her major shipping channels. It was apparent that if the regulation of commerce were left to the states they would soon degenerate into isolated economic fiefs with each one using discriminatory and retaliatory regulations against surrounding states.
The question had to be resolved as to how to keep states from setting up these tariffs and regulations on goods flowing into or out of a state. To leave this to the states to solve might lead to civil war. It would certainly lead to dissolution of the union. There was no other way to keep a state from setting up these restrictions than by giving the authority to do so to a neutral entity, and that was the federal government.
James Monroe of Virginia (while serving in Congress from 1783 to 1786) had unsuccessfully tried to include the federal regulation of commerce in the Articles of Confederation. He is also credited with suggesting it for the Constitution. Madison felt it was “necessary to preserve the Union,” for “without it, it (the Union ) will infallibly crumble to pieces.”
So by the time the Constitutional Convention was held in 1787 it was clear to many of the delegates that unless the regulation of interstate commerce was placed in the hands of the national government, the states would wreck the union with their petty regulations designed to promote local prosperity at the expense of the general welfare.
Emphasis was on Maintaining a Free Flow
of Commerce Among the States
Giving the national government the power to regulate interstate commerce, as a constitutionally delegated power proved to be the answer to maintaining a common market among the states. The commerce clause has consistently served as a barrier to the suppressive efforts of individual states to favor their own industry or economy. In more than 2,500 cases which have been brought before the state and federal courts, tax laws, license laws, and regulations of an infinite variety enacted by state legislatures have been held invalid as interfering with the free flow of interstate commerce.
As Economics Professor Gary Galles of Pepperdine University recently wrote: “The Commerce Clause was designed to take that abusive power from the states by giving Congress the power to regulate interstate commerce; ‘regulate’ meant ‘to make regular or normal’ or ‘to remove impediments..” ( Washington Times , March 27, 2010)
As with most constitutional provisions, the United States was the pioneer in discovering the advantages which the free flow of commerce among its several states contributed to national economic prosperity. Australia followed the opposite policy until 1900, when she conceded that provincial or state barriers to commerce were repressive. Brazil , Canada , and other nations with modern constitutions have generally followed the American Constitution in this respect.
It is crucial to note that, in the Founders’ formula, the whole power to regulate interstate commerce dealt only with matters to ensure the free flow of goods, or in other words, transportation of interstate commerce, not with any control over the production, manufacturing, or sale of goods going interstate. As W. Cleon Skousen explained:
Doctrines relating to the protection of the states’ sphere of power were set forth by the Supreme Court in the Sugar Trust Case. The court’s decision stated:
- Production is always local, and under the exclusive domain of the states.
- Commerce among the states (interstate commerce) does not begin until goods commence their final movement from their state of origin to that of their destination.
- The sale of any product is merely an incident of its production and is therefore under the domain of the state because its effect on interstate commerce is merely incidental
- Combinations or associations organized for the sale and distribution of goods are under the regulatory power of the state since the effect on interstate commerce is indirect, not direct.
As Justice George Sutherland pointed out in Carter v. Carter Coal Co.:
“Much stress is put upon the evils which come from the struggle between employers and employees over matters of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production, and the effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But … the conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. As a common law it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity…. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect.” (The Making of America, p. 406)
Changing Emphasis from Commerce to Regulate
In the decades following the passage of The Interstate Commerce Act of 1887 and usually under the pressure of war and depression, the Supreme Court twisted or reversed traditional cases on interstate commerce and introduced the unconstitutional doctrine that the federal government may regulate anything that affects interstate commerce directly or indirectly. (For a list of cases, see The Making of America , pp. 403-408) One must ask: “What doesn’t affect interstate commerce indirectly?” This has resulted in usurpation of power in the form of sweeping federal regulations over nearly every aspect of American life. These doctrines include:
- Anything affecting the “current of commerce” from manufacturing to distribution is under federal authority.
- Commerce includes all aspects of selling, trading, and trafficking, as well as interstate transportation. Therefore, the federal authority extends to every aspect of commercial activity connected with interstate commerce.
- The federal government can regulate any activity which affects interstate commerce either directly or indirectly. It can therefore fix prices, wages, working conditions, health conditions, and the retirement of employees.
- All interstate industries automatically come under federal authority for the purpose of intervening in strikes and labor relations. As the Supreme Court said: “When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?” This now includes all major industries in the country.
A Graphic Example – the American Hamburger!
In 1980, U. S. News and World Report published a Pictogram entitled, “Your Hamburger: 41,000 Regulations.” It reads:
“The hamburger, staple of the quick, inexpensive meal, is the subject of 41,000 federal and state regulations, many of those stemming from 200 laws and 110,000 precedent-setting court cases.
“These rules, cited in a three-volume study by Colorado State University, touch on everything involved in meat production-grazing practices of cattle, conditions in slaughterhouses and methods used to process meat for sale to supermarkets, restaurants and fast-food outlets. Together they add 8 to 11 cents per pound to the cost of hamburger.” And that was 30 years ago!
In a cut-away graphic, the report gave several examples, two of which are: “Ketchup-to be considered Grade A fancy, it must flow no more than 9 centimeters in 30 seconds at 69 degrees Fahrenheit” and, “Pickles-Slices must be between 1/8 and 3/8 inches thick.” ( U. S. News and World Report , February 11, 1980, p. 64)
Mandatory Health Care Invents even more
Authority in the Interstate Commerce Clause
As stated earlier, the proponents of the Health Care legislation recently passed by Congress and signed by the President cite the Commerce Clause as authority for doing such a thing. As we have just shown, any honest student who reads the Founders’ must admit there is no authority in the Constitution for such legislation, but, of course, the proponents like to cite Supreme Court cases to show how the authority has been added to the “living constitution” by the federal judiciary.
However, in citing court cases, no one can cite a single case in the history of the United States where it has been held constitutional for the federal government to require every person in this country to purchase a product or a service. This is exactly what this new legislation requires. Furthermore, it provides for a penalty to be paid if such health insurance is not purchased. This provision is so far beyond any authority in the history of this country, that it is difficult to envision even the Supreme Court of today approving such laws. The lawsuits are being filed. People are challenging. States are challenging. It seems that if by some irrational means the majority of the court does go along with this edict, which is far beyond even a liberal interpretation of the Commerce Clause to this point, there may be wholesale numbers ready to invoke the following paraphrased idea in the Declaration of Independence:
“.and accordingly all experience hath shown, that mankind [Americans] are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing [changing] the forms to which they are accustomed [that is, the form by which the people give Congress its power]. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government [or abusive power], and to provide new guards for their future security.”
Surely, this will push modern Americans to the point we reached in 1776.
