Thursday, January 24, 2013

A Debate About Federal Authority in Regards To The Commerce Clause

By Douglas V. Gibbs

On Political Pistachio you have access to my 25 Myths of the Constitution.  Sometimes, I still get comments on them, usually emails thanking me for them, and comments in the comments section to challenge what I wrote.  Today's challenge is in regards to Myth #2: Federal Law Supersedes State Law.  The challenger wrote:

Anonymous said...
This would all be right if it wasn't for the commerce clause in the constitution. The federal government has a right to regulate guns, drugs or anything that is traded across borders including from state to state. So, unless the guns or drugs are manufactured and sold only in that state, the congress can regulate them constitutionally.

I responded this morning with the following:

The Commerce Clause is an interesting animal.  Anonymous, you have bought into the court's interpretation of the Commerce Clause, but not what was intended by the founders.  In Madison's Notes on the Federal Convention you will find that the intent was for government to "regulate" only when there was a dispute between the States, meaning that the federal government was to act as a mediator, or referee, in such cases - not control or dictate the terms of all interstate commerce.  Your error comes from your premise which is largely based on your definition of the word "regulate."  Many Constitutionalists will state that "regulate" means: To Make Regular, which is essentially correct.  But to be more specific, if you refer to the 1828 Webster's Dictionary, which is available Online, you will find during that era the definitions of the word slightly differed from today's meaning.  Today, the word regulate immediately conjures up "control," and "restrict."  Immediately, upon hearing the word "regulate," folks assume it is a term that means "full control," or "dictatorial mandate."  In the 1828 Webster's Dictionary that definition is the last definition, or the least used.  The first definition regarded weights, measures, and the like.  When you decide how much sugar you put in your coffee you are regulating the amount you use.  When you turn on the hose, whether you restrict the flow, or open the flow up full blast, you are regulating that flow.  The second definition is the one that the founders were using in the Constitution.  The definition reads: To put in good order.  

Commerce, from a historical perspective, was not flowing in good order, because of the disagreements between the States, largely over boundaries, and tariffs.  The goal of the Commerce Clause was to put interstate commerce in good order by allowing the federal government the opportunity to mediate such disagreements.  However, almost immediately the Statists decided the federal government should have full authority over anything that moves across State lines, and the myth that the federal government can dictate to the States all things regarding interstate commerce arose.  So, your assertion that "The federal government has a right to regulate guns, drugs, or anything that is traded across borders including from state to state. So, unless the guns or drugs are manufactured and sold only in that state, the congress can regulate them constitutionally" is accurate in the sense of what is now believed to be the truth based on case law and the premise the governmental wolves wish you to believe, but it is hardly correct from the point of view of what was originally intended by the Founding Fathers.

Here is a few quotes to help you decide on the matter.

"For a like reason, I made no reference to the 'power to regulate commerce among the several States.' I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." -- James Madison, James Madison to Joseph C. Cabell, The Founders' Constitution, The University of Chicago Press, February 13, 1829
You know Sir that the Spirit of Commerce is a Spirit of Avarice, and that whenever the power is given the will certainly follows to monopolise, to engross, and to take every possible advantage. I am free therefore to own that I think it both safest & best to give no such power to Congress, leave it to that Body to point out what is fit to be done in this [line], and founding their plans on principles of moderation and most accordant to the actual state & situation of the different States, to recommend their systems for the general adoption. I am persuaded that this plan would be successful to every good purpose. A contrary one would, I verily believe, be more hurtful, much more hurtful to us, than even the crabbed selfish system of Great Britain."
-- Richard Henry Lee, Richard Henry Lee to Unknown, October 10, 1785

"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS." -- James Madison, The Federalist No. 45: Alleged Danger From the Powers of the Union to the State Governments Considered, Independent Journal, January 26, 1788

"To 'regulate commerce with foreign nations, and among the States, and with the Indian tribes.' To erect a bank, and to regulate commerce, are very different acts. He who erects a bank, creates a subject of commerce in its bills, so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trace, but as 'productive of considerable advantages to trade.' Still less are these powers covered by any other of the special enumerations." -- Thomas Jefferson, Jefferson's Opinion on the Constitutionality of a National Bank, 1791

"Having repeatedly noticed the defect of the former confederation, in respect to the regulation of the commerce between the several states, and the inconveniences resulting from it, I shall only mention one not yet touched upon: I mean the burthens which might be imposed by some of the states, on others, whose exports, and imports must necessarily pass through them. Thus a duty on salt imported into Virginia, or on tobacco exported from thence, might operate very extensively as a tax upon the citizens of the western parts of North Carolina and Tennessee, to the exclusive emolument of the state of Virginia. So unreasonable an advantage ought not to prevail among members of the same confederacy, and without a power to control it lodged somewhere, it would be impossible that it should not be exerted: the repetition of such exertions could scarcely fail to lay the foundation of irreconcileable jealousies, and animosities among the states. And it was evidently with a view to prevent these inconveniences, that the constitution provides that no state shall, without the consent of congress, lay any imposts, or duties on exports or imports, except what may be absolutely necessary for executing it's inspection laws." -- St. George Tucker, St. George Tucker, Blackstone's Commentaries 1:App. 248--54, The Founders' Constitution, The University of Chicago Press, 1803

"[The question is], whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited." -- Joseph Story, Commentaries on the Constitution, 1833


Alexander Hamilton and John Marshall were statists, and believed the federal government should have a stronger role as a central government than people like James Madison and Thomas Jefferson believed.  Their quotes, which would be more in line with the assertion made by my commenter, follows:

"Perhaps it may be thought, that the power of regulation will be left placed in the governments of the several states, and that a general superintendence is unnecessary. If the states had distinct interests, were unconnected with each other, their own governments would then be the proper and could be the only depositaries of such a power; but as they are parts of a whole with a common interest in trade, as in other things, there ought to be a common direction in that as in all other matters." -- Alexander Hamilton, Continentalist, no. 5, April 18, 1782

"[The commerce power] is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." -- Chief Justice John Marshall, Gibbons v. Ogden (1824), U.S. Supreme Court, 1824
"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. ..

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary." -- Chief Justice John Marshall, Gibbons v. Ogden (1824), U.S. Supreme Court, 1824

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