In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 2 I covered restoring the balance of power between the citizens and the government. This post will address reining in the national government by restoring the meaning of a few key constitutional phrases. In the final part, I’ll tie it all together with some additional thoughts.
The overarching power of the national government in the US is a direct product of an impossibly broad reading of one phrase in the Constitution, the refusal of the courts to recognize the 9th and 10th Amendments and the courts turning a blind eye to the national government achieving by taxation or spending what it is prohibited from doing by law. Fix these three things, and even the 16th Amendment is not so dangerous (though if the money is available some politician somewhere will try to scheme to use it and disregard the Constitution in the process).
The first and most important of these is restoring the proper meaning of the “Interstate Commerce Clause”. It’s a simple phrase with a clear meaning, but the progressives, in order to force their unconstitutional programs on the country, warped it to mean something it clearly did not when it was passed and then use it to circumvent all of the checks and balances in the Constitution. The US Constitution, in Article 1, Section 8 says, in part:
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
In the most plain reading of the text, Congress is empowered to regulate trade BETWEEN states, just as it is between the US and foreign powers (and Indians tribes as well). In no way could ‘regulate trade with foreign nations’ be read to allow Congress to regulate trade WITHIN those nations, even if the ultimate destination of the good or service was the US. Until the good or service crosses the US border, the Congress has no power to regulate or control it. The Congress can’t regulate the sale of Italian Wine to German consumers. Even more so, it is absolutely certain that the Congress can not regulate trade between a Italian baker and Italian consumer. Such a notion would be absurd. And it’s equally absurd to think Congress could then regulate trade between an Illinois wheat grower and an Illinois baker or an Illinois baker and an Illinois consumer. Yet, this is exactly what the national government claims it may do, and what the courts permit it to do.
Ever since Wickard v. Filburn, covered here in detail and referenced by yours truly many times, Congress has interfered with any and all activity, even activity that occurs completely within a state’s boundaries. The Framers in no way intended for this result, expecting the citizens of each state, through their legislatures, to regulate any economic activity as they saw fit, so long as it was consistent with the state and national constitutions. The notion that the national government could reach into a state and control the daily lives of the people was so frightening to all, Federalists and Anti-Federalists alike, that provisions were written into the Constitution to ensure that this did not happen. As we’ll cover below, some felt the limitations were not sufficient and so the Bill of Rights, containing a clear statement of the principle of state power, was added almost immediately after the Constitution was ratified (and in fact, ratification in some states was contingent on this).
As the federal government sees it, and the courts have permitted, any activity that might in any way affect interstate commerce is now the purview of the federal government. In the case of Wickard, it was growing corn for his own use. This offended the centralized control supporters who realized that if they couldn’t prevent private economic activity they would never be able to impose the kinds of controls they wished. Unfortunately, they got their way. Federal regulations now touch every part of your life and there is no escaping them. The centralized command and control structures continue to grow every year as “new” and “better” ways of regulating and controlling your life are implemented.
A small impediment was thrown in the way of the national government when the “Individual Mandate” of the Affordable Care Act was found to be unconstitutional as a regulatory requirement. That impediment was immediately removed by finding that Congress power to tax allowed it to create tax consequences for failing to buy insurance. While the Court did state that this was only permitted since the taxes were not high enough to be coercive, the public is at the mercy of a future Supreme Court deciding what the ‘coercive’ limit it. I suspect we’ll never hit that limit, since the Court will defer to Congress’ taxing power. In the end, this wasn’t even a speed-bump on the way to and end-run around the Constitution.
The thing is, even THIS wasn’t enough for those who wanted to see centralized planning and control. There were still things that were prohibited to them by the courts. The landmark case that both reinforced this and opened the floodgates to a torrent of federal rules and regulations that are not part of the constitutionally delegated powers of the national government was South Dakota v. Dole. This case upheld the national government’s right to control state policy by withholding already allocated funds. In other words, a bait and switch exercise if there ever was one. The states signed up for the interstate highway program (something that is arguably constitutional under the delegated federal power to create ‘post roads’). Later on, after the states were committed to the program (with the federal government sending fuel tax money back to the states), new rules were unilaterally imposed on the states by Washington, and continued receipt of highway funds to maintain the FEDERAL highways was made contingent on accepting these unrelated conditions. The 7-2 ruling put an end to any limits on federal power. From this point on, the federal government used the purse strings of existing funding to implement new rules.
Although it created other problems, the rulings on the Affordable Care Act in National Federation of Independent Business v. Sabelius finally put some limits on this power, though not enough to roll-back any of the previous egregious power grabs. In this case, three Justices of the Supreme Court said that the Congress had overreached and that they could not reduce current funding for Medicaid for states that refused to implement Medicaid expansion. These three, together with the two that would have upheld the whole Act, and the four that found the entire Act unconstitutional, created a majority that allowed the Medicare expansion but denied the power to cut current funding. Given the fractured nature of the ruling, nobody can predict what might happen with future funding-cut threats. My guess is that they will be permitted, so long as the national government can convince the courts that the funds withheld are insufficient to be coercive (see SD v. Dole).
So, now, if it involves interstate commerce, federally funded projects or taxes, there are no limits on what the Congress and the President can do. The Courts have ignored the expressly stated limited powers delegated to the national government, so long as the government takes care to follow the rules laid out by the court. If a law would be unconstitutional, you simply either make it a condition for a state to follow to continue to receive funding, make it a tax or declare it to be related to interstate commerce. The courts then proceed to ignore every other limitation in the Constitution.
I mentioned before that the Framers, in an attempt to calm the fears of the Anti-Federalists, added the Bill of Rights that contained, along with eight others, the following:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Courts have routinely ignored these amendments and generally reject arguments based on them. They are, in effect, dead letters, quaint notions from a time before the “Living Constitution” foisted on us by the progressives in their never-ending quest to “do something” to improve our lives. The entire federal edifice erected by the progressives is a monument to their failure. It has not stopped war, solved poverty, equalized income, prevented economic dislocation, created jobs, improved education, prevented banking scandals, forestalled stock market crashes nor any other thing. Remember, this is referring to the centralized power, not to local governments where we find many success stories.
That was the dream of the Framers—strong local and state governments that provided the services they community wanted and needed, according to the desires of the local community and on terms the local voters set. National power was to be severely limited to a small set of duties—protecting the borders, conducting foreign policy (trade, treaties, war), ensuring free trade among the states, running a postal service and a other clearly enumerated tasks.
The solutions are simple. Restore the proper meaning of the “Commerce Clause”, reject any conditions, regulations or policies that would be unconstitutional if passed into law directly (as opposed to using the taxing or spending power) and return the 9th and 10th Amendments to their rightful place. Doing this would put us on the road to restoring the Republic in a generation.
In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 2 I covered restoring the balance of power between the people and the government. In Part 4 I’ll tie it all together with some additional thoughts.