By Douglas V. Gibbs
The excuse used by the federal government for restrictions on gun ownership, the disallowance of health insurance being sold across state lines, or the restrictions placed by the feds on anything else that crosses state lines is in the U.S. Constitution. Article I, Section 8, Clause 3 of the U.S. Constitution, also known as the Commerce Clause, reads that the Congress shall have power "To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes."
When faced with the question under what Constitutional authority does Congress have the right to create a public option for health care, or to regulate carbon emissions with Cap and Trade, the response by the Democrats is "The Commerce Clause." After all, the Commerce Clause says that the Congress can "regulate" interstate commerce, right?
The United States Constitution was written with the specific purpose to "form a more perfect Union," which was lacking under the Articles of Confederation. The Articles of Confederation, in an attempt to limit the size of the federal government, and enable state sovereignty, went too far, and did not give the federal government enough power to protect the union. But, when writing the U.S. Constitution, though the founding fathers desired to give the federal government a little more power than granted in the Articles of Confederation, they were still very wary about giving the federal government too much power.
One device used to limit the federal government's power was to divide the power among three branches of government, and to continue to give the states sovereignty over their own operations. The authorities granted to the federal government were few, and well defined in Article I, Section 8. Considering that the founder's aim was to limit the federal government's powers, it is difficult to accept the notion that the founding fathers meant for the Congress to have regulatory powers over interstate commerce to the point that it even contradicts other parts of the Constitution.
By what authority does the Congress have to do what they are doing if the Commerce Clause does not mean what they think it does? Or, does the Congress truly have the Constitutional authority to regulate interstate commerce as they claim?
As President Clinton once said, "It depends on what the definition of is is."
If the word "regulate" gives the Congress unlimited powers, then the argument stops there, and the American People are at the mercy (or lack thereof) of Congress. However, if the definition of the word "regulate" means something different, then it could be entirely possible, despite their argument to the contrary, that what the federal government is attempting is unconstitutional, and in turn, illegal when applied to the Law of the Land.
The states of the union, according to the founding documents, were expected to operate as independent sovereign states. The Unity of the states is made possible by the protective umbrella of the federal government. The federal government, however, is limited to protecting the states, acting as a referee in any disputes between the states, establishing post offices, and so forth. When it comes to the commerce between the states, considering the founding father's aim of enabling the states to work together freely, it seems against the original intent of the Constitution for the government to be able to restrict commerce between the states as current liberal thinking suggests. In fact, considering the conditions of the nation after the Revolutionary War that demanded the states be able to trade with each other without obstruction, it seems highly unlikely that commerce was supposed to be restricted by federal regulations at all.
Upon tireless research it becomes apparent that one's assumptions that the founding fathers did not mean for regulation to be restrictive are true. Commerce, or the trade and transportation of goods or services across state lines, was an important aspect of the economy of the young nation. Regulate, a word that means "to control" in today's language, contained an entirely different meaning during the days of the founding of this nation. With the need of commerce to remain unimpeded, the word regulate was used to ensure the federal government enabled commerce, not restricted it. During that time period, consistent with one's assumption that the founding fathers would not desire to limit commerce through federal interference, it turns out that "regulate" meant "to make regular." In other words, the Commerce Clause was designed to make regular the exchange of goods between the states and to bring parity between the states regarding interstate commerce. When a dispute arose concerning commerce between the states, the federal government could help settle the dispute, but the movement of commerce was supposed to commence and continue without federal governmental interference.
Knowing that the purpose of the Commerce Clause is to make regular interstate commerce, it is glaringly clear that the federal government not only does not have the Constitutional authority to do much of what it does in the name of the Commerce Clause, but it is actually acting in an opposite manner of what was originally intended. In fact, if the federal government was to follow the original intent of the Commerce Clause in the case of Health Insurance, they would not be creating a nationalized system, but would instead follow the advice of the Republicans and open up the ability to sell insurance across state lines. To do so would create competition, reduce the price of policies, and make regular the interstate commerce of such products - as the founding fathers originally intended.
-- Political Pistachio Conservative News and Commentary
Private Regulation: A Real Alternative for Regulatory Reform - Cato Institute
What Happened to our System of Limited Government? - Price of Liberty
The Original Meaning of the Commerce Clause - The University of Chicago Law Review
Ruth Marcus, the Health Care Reform Bill, the Commerce Clause, and the Ensuing Nonsensical Result - Canada Free Press