Any Fool Can Understand the Commerce Clause

By Alan Caruba

I am not a lawyer. I never wanted to be a lawyer. I have some friends who are lawyers and I forgive them and occasionally have to employ them. America, at the federal, state, and local level generates so many laws that the system requires a legion of lawyers to deal with them. The result is a general lack of respect for all laws short of the Ten Commandments.

The U.S. Constitution, in effect since June 21, 1788 when New Hampshire became the ninth State to ratify it, is a remarkable document, not the least for being the oldest functioning constitution of any nation at this point in time. What I like best about it is that anyone can read and understand it.

Until the progressive era in the U.S. that began in the 1900s and went bonkers in the 1930s, the Constitution underwent a number of judicial interpretations that largely affirmed the intentions of the Founding Fathers who wrote it. This was made easier by the existence of the Federalist Papers, letters and writings by the Framers, who clarified its various elements.

The Constitution was not foisted on Americans. It was, after the collapse of the Articles of Confederation, widely discussed and debated. With the addition of the Bill of Rights, all the original States signed onto it. There have been only 27 Amendments because, wisely the Framers contrived to make the process as difficult as possible. They also fashioned an instrument of governance intended to slow down the entire legislative process.

Americans understand that passing 2,000-plus page bills that have not been read or attempting to pass such bills hurriedly during the “lame duck” session of Congress, many of whose members have been voted out of office, is an obscenity, an offense to the intent of the Constitution.

Anyone reading Article One, Section 8, understands it enumerates a number of powers allocated solely to the Federal government such as the coining of money, declaring war, and such. It was always understood that the federal government is limited to the exercise of the Constitution's enumerated powers.

One of those powers is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” That is the commerce clause.

The meaning of commerce was limited to “trade and exchange” of goods and transportation for this purpose. The purpose was to make “regular” such activity; to provide laws to ensure that business would be conducted properly between the States or with foreign nations to everyone’s mutual benefit.

What the commerce clause does not authorize is the right of the federal government to compel a citizen to involuntarily purchase anything.

The “linchpin” of Obamacare is the requirement that everyone must purchase health insurance or to suffer a financial penalty for failing to do so, but the federal government has restricted the free purchase of health insurance across State lines, thus inhibiting competition that would allow for lower rates. There is a touch of schizophrenia in this.

As Judge Henry Hudson recently ruled in the case of Virginia v. Sebelius, on December 13, “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision (the individual mandate) exceeds the Commerce Clause powers vested in Congress under Article 1.”

“The Minimum Essential Coverage Provision is neither within the letter, nor the spirit of the Constitution.”

That should be the end of the issue and the end of Obamacare, but as the late Justice Rehnquist noted in one decision, “it is illuminating for purposes of reflections, if not for argument, to note that one of the greatest fictions of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people.”

The growth of the powers Congress has arrogated to itself is the singular greatest threat to freedom and liberty in America. This is why so many individual States have joined in the several cases brought against Obamacare.

Failing a common sense ruling on this case by the Supreme Court, the States have but one option left and that is nullification. They can, individually and together, pass laws to restrict the implementation of Obamacare.

Meanwhile, the incoming 2011 Congress can and should do everything in its power to defund and otherwise thwart this assault on liberty.

In 2012, Americans can rid themselves of the current usurper of the office of the presidency, a man whose first executive order, #13489, issued on January 21, 2009, was directed at hiding all essential documentation of his legitimacy.

© Alan Caruba, 2010