Why Originalism Matters (Part VII)

Proximity

There seems to be an understanding that federal government power extends to anything that may be seen as a national problem. Liberals argue that healthcare is a national problem, but that is not necessarily true. Healthcare can be a local and state issue just as much as it is a national problem. For instance, ObamaCare is not solved as a national issue, but at the state level with each state creating its own ObamaCare insurance exchanges and even some states have decided to opt out of ObamaCare exchanges. Minimum wage is not a national problem because the cost of living not only varies a great deal between states, but between localities. Unions are not a national necessity because many states with thriving economies are right to work states (a Fundamental Right). Hence, Congress will use the guise of national problems to convince the Court to rubber stamp their agenda. After all, if it is truly a national problem, then only Congress can solve the problem, right?

Justices and the federal government are of the incorrect belief that one size fits all. Although most laws passed by Congress are discriminatory because they treat citizens differently (i.e. ObamaCare treats persons in a union differently than other citizens and it exempts Congress from using the healthcare law), they tend to think one concept such as ObamaCare (healthcare) or Abortion is a good idea in every state and locality. Forced abortion in highly religious states such as Utah makes very little sense. If Abortion is a good idea get it amended to the Constitution. ObamaCare policies have mandatory coverage for childbirth for all women including women older than 60. ObamaCare mandates people who do not have insurance to buy it even if they do not want it. ObamaCare forces companies to lay off workers or put them on part time to avoid paying fines. Even if ObamaCare provides needed healthcare to some Citizens, it is unconstitutional because in doing so, it violates the Fundamental Rights of other Citizens. Congress and the Court refuse to accept that all laws are not necessarily designed to function equally for all across all factions of the population. For instance, rural farmers are at the mercy of urban policy makers: Reynolds v. Simms was one of biggest travesties in this regard (Democracy or majority views take precedent over Republican views that defend minorities).

The Commerce Clause Example:

The Commerce Clause in conjunction with the Necessary and Proper Clause have been the most abused Clauses in the Constitution. The expansion of the Commerce Clause in the FDR Court was called by liberals as necessary because our Founders did not anticipate the implications of a complicated and interconnected modern economy. Once again this is not true. Madison said this of John Marshall’s decision in McCulloch v. Maryland (which held a national bank was Constitutional): “everything is related immediately or remotely to every other thing, and consequently, a power over any one thing, if not limited by obvious and precise affinity, may account to a power over every other thing.” Our Founders were smart, especially Madison, and he understood the intricate details of economics back in the 1820s when he wrote this statement.

The Commerce Clause states: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Commerce typically means “trade” in its narrow interpretation which was by far the most common usage during the founding period. Commerce has nothing to do with the manufacturing of products or with agriculture. After all, the United States could not regulate manufacturing and agriculture with foreign nations or Indian Tribes. That makes no sense. In its broadest application Commerce could mean any “gainful activity” (for profit). Commerce was used hundreds of times within the Constitution, the Federalist Papers, at the Constitution Convention, and at State ratification conventions and Commerce always meant trade and nothing else. But regardless of the definition, the Commerce Clause today is applied by the Supreme Court in even more broad terms than gainful activity. In Gibbons v. Odgen decided by the Marshall Court, Marshall incorrectly gave the definition of Commerce a broader meaning than intended in the Constitution: “Intercourse”. In Gibbons, Marshall correctly asserted that Congress had the power to regulate ship navigation for commerce. However, in the 1895 case United States v. E.C. Knight and the 1936 case Carter v. Carter Coal Company the Court held that Commerce meant trade (not intercourse) and it did not include activities such as manufacturing or agriculture. In E.C. Knight the Court considered using the Sherman Anti-Trust Act to break up a sugar production monopoly and in Carter Coal the Court considered economic regulations on coal manufacturing. Of course, the Court was criticized by social justice liberals for their rulings in these cases because the Constitution must evolve to handle modern conditions. In 1937 in NRLB v. Jones, the Court overruled Carter (1 year later!). That is caving to political pressure. Is federal government control necessary over wages, hours, and union activities of workers? Of course not, most states have similar laws. For instance, states with a high cost of living have minimum wage laws that are higher than the Federal law (about half). States are fully capable of passing its own economic laws to keep up with modern times.

“Among the several states” means between the people of different states. However, the modern meaning of this term means nothing since the Court has given Congress the right to regulate intrastate Commerce. In Gibbons v. Ogden Marshall erred in defining “among the several states” as meaning “concerns more state than one”. At first this seems harmless but this definition justified future Courts to “regulate” intrastate commerce that may affect another state. Of course we know this is not the true meaning because Congress cannot regulate intrastate commerce that affects foreign nations or Indian Tribes.

To “regulate” means to make something regular. There is nothing in the meaning of to regulate to mean to prohibit commerce. However, the regulation of Commerce has also included the prohibition of commerce. This was first done in Champion v. Ames where the Court upheld a prohibition of selling lottery tickets over state lines. Selling lottery tickets intrastate or interstate does not violate the liberties, rights or freedoms of a single citizen. So it begs to reason why would the Court make such a decision. The answer is simple, the progressive Court was issuing moral justice, not the law (gambling is bad). As bad as this decision may have been, the majority did not say Congress had the right to regulate or prohibit commerce within a state. The Eighteenth Amendment (prohibition of alcohol) was ratified in 1919 because Congress did not have the right to prohibit alcohol using the Commerce Clause. A proposed amendment (but unratified) in 1926 sought to prohibit work of children under eighteen years of age. This is proof that regulation and prohibition are two separate items. In Hammer v. Dagenhart (1918) the Court found a law prohibiting the commerce of products made by children unconstitutional, but Hammer was overruled by 1941 in United States v. Darby violating the definition of regulation as identified in past precedent and the Eighteenth Amendment.

Under the broadest meaning of Commerce (Gainful activity – for profit) Congress could not legally enforce any law prohibiting alcohol, tobacco, drugs, guns, pornography, or other potentially illegal activities. In Wickard v. Filburn the Court established the “aggregate effects” doctrine. This means anything that has an aggregate effect on commerce can be regulated. In Wickard the Court held wheat regulations included those crops intended to feed one’s personal family were Constitutional. Think about the consequences of the “aggregate effects” doctrine for a moment. This means that anything we buy, such as a stick of gum, can have an aggregate effect on commerce and can be regulated. The Court even established the “the articles of commerce” doctrine which allows Congress to regulate any activity that makes use of any product that ever traveled in interstate commerce. The key word here is “activity” such as manufacturing, agriculture, or anything economic including wages, hours, work conditions, overtime, and so forth and so on. David Engdahl called this the “herpes theory of interstate commerce”. In 1995, the Court held in Lopez v. United States that for something to be considered commerce, it would have to “substantially effect” commerce. The Lopez decision also limited commerce to include only economic activities. This put a stop to the insanity but it was too little too late. The damage had been done. State police power had been diminished into federal police power over any economic activity including intrastate commerce and even prohibiting commerce. That is a lot of power that has been abused by the federal government monopoly with no oversight or checks and balances.