The other day I hinted that the President and Progressive members of Congress secretly fear the constitutional challenge to the healthcare bill. It has nothing to do with actually negating that healthcare bill per se, but rather the spill over affects of challenging the liberal use of the Commerce Clause that has given, or rather, that has allowed the Federal government to seize powers that were reserved for the States and the People when the Constitution was enacted.
Much of what the Federal government has done over the past one-hundred years has been justified through an interpretation of the Constitution and not what is actually written in the law. Since the Congress and President see fit to invoke the Commerce Clause as their justification lets take a look at that clause.
The United States Constitution
Article One
Section Eight
The Powers of Congress (third paragraph)
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
While seemingly innocuous, the Commerce Clause has been intentionally manipulated ever since the days of Theodore Roosevelt. To derive the power needed to create massive agencies and oppressive regulations using this simple statement one must first ignore or conceal the words and intentions of the founding fathers. “To Regulate”, at the time the Constitution was written, simply meant “to make regular” and the authority to regulate was never meant to imply that the Federal government would have any powers beyond those that were enumerated in Article one, Section Eight. There are numerous examples that prove this interpretation in both the Constitution and in the Federalist Papers and it doesn’t take very long to find them.
The Merriam-Webster dictionary offers three definitions for “regulate” which are”:
1- To govern or direct according to rule: to bring under the control of law or constituted authority: to make regulations for or concerning (regulate the industries of a country)2- To bring order, method, or uniformity (to regulate one's habits)3- To fix or adjust the time, amount, degree, or rate of (regulate the pressure of a tire)
Congress loves to use the first definition of “regulate” to justify their actions through the use of the Commerce Clause but is that really appropriate? The Commerce Clause gives Congress to regulate Commerce with foreign nations but we all know that foreign nations are sovereign and will only recognize the rule and authority of law within the framework of their own governmental processes. Can Congress claim the Commerce Clause gives them the authority to negate the lawful structure of government in a foreign nation and burden that nation with laws and controlling regulations simply because we have trade with that nation? Of course not! As much as Congress may love that definition of regulate, it is clear that since the Commerce Clause also uses the word regulate in conjunction with commerce between the US and foreign nations; the definition that best applies would be the second “To bring order, method, or uniformity.”
In Article one, Section Eight, Congress also has the authority “to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”. Money is an object, so clearly one cannot control the actions of money through legislative regulation. The regulation of the value of currency can only make sense in the context of insuring that the value of money was uniform throughout the United States and that the exchange rate with foreign currency was equally uniform; that a dollar in Massachusetts was worth the same as a dollar in Georgia and both of those dollars could be exchanged for an equal amount in British Pounds.
In the Madison debates staged during the August meetings of the Federal Convention of 1787, Representative John Mason of Maryland argued the point of regulating the militia. In fact, his motion was for the “…power to make laws regulating and disciplining the militia...” Since discipline is a rule or system of rules governing conduct or activity using regulation to imply control through legislative regulation would be redundant and redundancy was not something our founders were famous for. Therefore, the word regulate in that case also referred to insuring a basic uniformity of standards for the militia. Many examples exist within the Federalist papers and each time the word “regulate” appeared, it could only have meant to guarantee a degree of uniformity.
Since the inception of the Federal government and most especially, over the last hundred years, Congress has routinely overstepped its authority and in doing so, has slowly diluted the rights of the States that were clearly denied to the Federal government by the Tenth Amendment. The Federal legislation resulting from this seizure of power is now challenging the rights of all American citizens. For the Federal government to assume a power that is not clearly enunciated as one of the enumerated powers, they must first take that power away from the States, the people or both and the Commerce Clause is what has been most often used to achieve that. The President and the Congressional Democrats will fight tooth and nail in the defense of their new healthcare legislation but much of that fight will be waged to prevent the toppling of the healthcare bill from being used as a springboard by a coalition of States intent on restoring their Tenth Amendment rights and the Constitutional balance of power.
In addition to the actions taken by the States to block the individual mandate in the healthcare bill, a number of States have already enacted legislation or have legislation pending, designed to bolster the rights of gun owners in response to the threat of new Federal legislation that would restrict our Second Amendment right to keep and bear arms. These same States are considering measures to protect the rights of those that hunt and fish now that there are threats of Federal interference with those activities as well. As the Federal government attempts to cultivate more power in Washington, the States have finally realized the danger and are taking action themselves. Eventually the cases questioning the constitutionality of the Healthcare Bill will find their way to the Supreme Court and a defeat for Obama there may open the door for the States to question the authority of the Federal government in other areas where the definition of commerce is in question or where the interstate activity of that commerce has not been firmly established.
This reigning in of the Federal government is long overdue and if these measures fail, there may be no way to restrain the Washington leviathan the States created through their own complacency. If however, the individual mandate to purchase insurance fails to pass muster for constitutionality, the healthcare bill will fall with it and that failure will set the stage for a reevaluation of other, equally intrusive Federal agencies, programs and regulations. Federal law may supersede State law as the law of the land but not if the Federal laws, are themselves, unconstitutional. The Constitution grants the Federal government authority to enact any and all laws needed to fulfill their lawful obligations under the Constitution but those obligations are few and limited. I have a feeling they are about to find out how few and how limited their powers will be and they aren’t going to like it very much.
Paul
Much of what the Federal government has done over the past one-hundred years has been justified through an interpretation of the Constitution and not what is actually written in the law. Since the Congress and President see fit to invoke the Commerce Clause as their justification lets take a look at that clause.
The United States Constitution
Article One
Section Eight
The Powers of Congress (third paragraph)
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
While seemingly innocuous, the Commerce Clause has been intentionally manipulated ever since the days of Theodore Roosevelt. To derive the power needed to create massive agencies and oppressive regulations using this simple statement one must first ignore or conceal the words and intentions of the founding fathers. “To Regulate”, at the time the Constitution was written, simply meant “to make regular” and the authority to regulate was never meant to imply that the Federal government would have any powers beyond those that were enumerated in Article one, Section Eight. There are numerous examples that prove this interpretation in both the Constitution and in the Federalist Papers and it doesn’t take very long to find them.
The Merriam-Webster dictionary offers three definitions for “regulate” which are”:
1- To govern or direct according to rule: to bring under the control of law or constituted authority: to make regulations for or concerning (regulate the industries of a country)2- To bring order, method, or uniformity (to regulate one's habits)3- To fix or adjust the time, amount, degree, or rate of (regulate the pressure of a tire)
Congress loves to use the first definition of “regulate” to justify their actions through the use of the Commerce Clause but is that really appropriate? The Commerce Clause gives Congress to regulate Commerce with foreign nations but we all know that foreign nations are sovereign and will only recognize the rule and authority of law within the framework of their own governmental processes. Can Congress claim the Commerce Clause gives them the authority to negate the lawful structure of government in a foreign nation and burden that nation with laws and controlling regulations simply because we have trade with that nation? Of course not! As much as Congress may love that definition of regulate, it is clear that since the Commerce Clause also uses the word regulate in conjunction with commerce between the US and foreign nations; the definition that best applies would be the second “To bring order, method, or uniformity.”
In Article one, Section Eight, Congress also has the authority “to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”. Money is an object, so clearly one cannot control the actions of money through legislative regulation. The regulation of the value of currency can only make sense in the context of insuring that the value of money was uniform throughout the United States and that the exchange rate with foreign currency was equally uniform; that a dollar in Massachusetts was worth the same as a dollar in Georgia and both of those dollars could be exchanged for an equal amount in British Pounds.
In the Madison debates staged during the August meetings of the Federal Convention of 1787, Representative John Mason of Maryland argued the point of regulating the militia. In fact, his motion was for the “…power to make laws regulating and disciplining the militia...” Since discipline is a rule or system of rules governing conduct or activity using regulation to imply control through legislative regulation would be redundant and redundancy was not something our founders were famous for. Therefore, the word regulate in that case also referred to insuring a basic uniformity of standards for the militia. Many examples exist within the Federalist papers and each time the word “regulate” appeared, it could only have meant to guarantee a degree of uniformity.
Since the inception of the Federal government and most especially, over the last hundred years, Congress has routinely overstepped its authority and in doing so, has slowly diluted the rights of the States that were clearly denied to the Federal government by the Tenth Amendment. The Federal legislation resulting from this seizure of power is now challenging the rights of all American citizens. For the Federal government to assume a power that is not clearly enunciated as one of the enumerated powers, they must first take that power away from the States, the people or both and the Commerce Clause is what has been most often used to achieve that. The President and the Congressional Democrats will fight tooth and nail in the defense of their new healthcare legislation but much of that fight will be waged to prevent the toppling of the healthcare bill from being used as a springboard by a coalition of States intent on restoring their Tenth Amendment rights and the Constitutional balance of power.
In addition to the actions taken by the States to block the individual mandate in the healthcare bill, a number of States have already enacted legislation or have legislation pending, designed to bolster the rights of gun owners in response to the threat of new Federal legislation that would restrict our Second Amendment right to keep and bear arms. These same States are considering measures to protect the rights of those that hunt and fish now that there are threats of Federal interference with those activities as well. As the Federal government attempts to cultivate more power in Washington, the States have finally realized the danger and are taking action themselves. Eventually the cases questioning the constitutionality of the Healthcare Bill will find their way to the Supreme Court and a defeat for Obama there may open the door for the States to question the authority of the Federal government in other areas where the definition of commerce is in question or where the interstate activity of that commerce has not been firmly established.
This reigning in of the Federal government is long overdue and if these measures fail, there may be no way to restrain the Washington leviathan the States created through their own complacency. If however, the individual mandate to purchase insurance fails to pass muster for constitutionality, the healthcare bill will fall with it and that failure will set the stage for a reevaluation of other, equally intrusive Federal agencies, programs and regulations. Federal law may supersede State law as the law of the land but not if the Federal laws, are themselves, unconstitutional. The Constitution grants the Federal government authority to enact any and all laws needed to fulfill their lawful obligations under the Constitution but those obligations are few and limited. I have a feeling they are about to find out how few and how limited their powers will be and they aren’t going to like it very much.
Paul
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