The View From 1776

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An editorial opinion piece reproduced below and appearing in today’s Washington Post gives readers the impression that Supreme Court cases in recent years have resulted in some deformity to the Constitution, to the extent that the Court’s rulings have in limited degrees curtailed Federal authority over state and local affairs.  This is what is now styled the issue of Federalism, the conservative thesis that the Ninth and Tenth Amendments of the Bill of Rights actually meant something tangible when they reserved to the states and to the people powers not granted by the Constitution to the Federal government.

Now, it is clear that any government that has unlimited power to regulate all activity by its citizens is a totalitarian government.  Even if some leaders of such governments act with restraint, the power remains available to unscrupulous and power-hungry leaders.  It is precisely this that the colonists fought against in 1776.  As I noted in another posting, the writers of the Constitution were at pains during the debate over ratifying the Constitution to assure everyone that it would create a government of limited powers.

In Federalist No. 32, Alexander Hamilton wrote:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.”

It is a simple fact that nowhere in the Constitution is there to be found language empowering Congress or the President to impose most of the millions of regulations that control everyone’s daily life, either directly or indirectly.  For example, on what Constitutional basis can Congress compel states and cities to provide wheel-chair access to their premises?  Where resides the authority to make it a Federal crime to think certain things in the course of committing a crime under state laws, as is done with Hate Crime statutes?

Whether such measures are good or bad is not the question.  The issue is what are the limits on Federal power imposed by the Constitution?

The source of such powers, according to liberal-socialists, is the Constitution’s commerce clause.  Liberal-socialists’ Constitutional-law guru in the New Deal era of the 1930s was Professor Edward S. Corwin, who wrote in “The Commerce Power versus States Rights”:

“The most important source of national power touching private conduct is, in ordinary times, the power of Congress to regulate commerce among the states.”

Note that Professor Corwin wrote this in 1936, after the Supreme Court had invalidated many parts of the President Franklin Roosevelt’s socialistic state-planning programs.  His complaint was that the Court was too restrictive on Congressional powers over the states and citizens within the states. 

The following year, President Roosevelt attempted, in the words of Congressional liberals who defeated it, to make of the Supreme Court a rubber stamp for executive orders of the President.  Shortly thereafter, several elderly Justices retired, allowing President Roosevelt to appoint Justices who saw no objection to essentially unlimited extension of Congressional power over the states.

The seemingly innocuous commerce clause is found in the Constitution’s Article I, Section 8, which begins “The Congress shall have Power ......”

Clause 3 reads: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Let’s first look at the intent of the founders when they wrote the commerce clause, as described in Federalist No. 42, where James Madison wrote:

“The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience.

“To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

“To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.”

The intent of the commerce clause was further illuminated by the first case to be decided under it by the Supreme Court, Gibbons v. Ogden, in 1824.  This case arose in the conflict between an act of Congress regulating shipping trade along the coasts of the various states and a monopoly granted by the State of New York to operate steamboats on the waters of the state.  The effect of the New York monopoly was to stop steamboats from other states attempting to enter the harbor of New York City.

Ruling against the New York monopoly, Chief Justice John Marshall wrote:

“The subject to which the [commerce clause] power is next applied is to commerce “among the several States.” The word “among” means intermingled with.  A thing which is among others is intermingled with them.  Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior.....

“The completely internal commerce of a State, then, may be considered as reserved for the State itself.”

In the years after President Roosevelt’s 1937 Court-packing attempt (which proposed increasing the number Justices from nine to twelve, so that the President Roosevelt would always command a majority), socialists nonetheless got their way.  Justices appointed thereafter by President Roosevelt were schooled in Justice Oliver Wendell Holmes’s “judicial realism" and tended to accept the belief that a good and well-ordered political state necessitated collectivized power at the top to give socialist state-planners full scope to restructure society and impose social justice.

After 1937, the Court sanctioned increasingly broad-impact Congressional enactments that regulated economic activity confined entirely within individual states.  This obviously contravened the ruling of Chief Justice John Marshall in the Gibbons v. Ogden case stated above.

The Court’s sophistic rationalization was that any activity, even if confined to a single city within a single state, could be construed to have a “substantial effect” on commerce in other states and among the states. 

If one accepts this interpretation, then anything can be regulated by Congress under the commerce clause power.  Carried to the extremes favored by liberal-socialists, even the birth of a baby is subject to regulation, because it creates new demand for products, some of the components of which may move in interstate commerce.  Is abortion a means to regulate interstate commerce?

This is an exceedingly steep and slippery slope headed straight to Hell.

For example, New Deal regulations imposed upon agriculture required farmers to limit the acreage planted in certain crops.  One farmer was jailed, because he planted a small additional acreage in crops to be consumed only by his own family.  Federal regulators argued, and the courts agreed, that even if the farmer’s additional crop never left his farm, it still had a substantial effect on interstate commerce, because any additional supply of a commodity affected, however imperceptibly, the market price for the commodity, which thereby affected interstate commerce.

Think about it somewhat more broadly.  Whence comes the power of Congress to regulate an entire sector of the economy for the purpose of controlling supplies and prices?  This is socialism, pure and simple.  And in a socialistic political state it is presumed that socialist intellectuals’ knowledge of the inevitable course of history entitles and enables them to plan activity within industries more effective than the owners of the businesses. 

It assuredly doesn’t originate in the Constitution, which was based squarely on individualism and private property rights.

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The Stakes for States
The Washington Post
Sunday, August 14, 2005; Page B06

IN A REMARKABLE letter last week, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) laid down a marker to Supreme Court nominee John G. Roberts Jr. on the subject of federalism—that is, the balance of power between the national government and the states. Mr. Specter wrote to give Judge Roberts “advance notice of some of the issues I will be asking at your confirmation hearing” and proceeded to attack the high court’s recent jurisprudence on states’ rights and congressional power. He concluded with a series of questions that attempt to ascertain Judge Roberts’s own views on the subject.
Mr. Specter’s interest in the issue is certainly justified. As a justice, Judge Roberts could have a major influence on issues of federalism, which are the tectonic plates of constitutional law. Federalism questions may not be the hot-button issues that rile public passions, but they have been at the center of the court’s deliberations over the past decade and the results have been uneven. Some rulings have offered a healthy check on congressional power over the states. Others have been frankly inconsiderate of Congress’s ability to make law in matters squarely within its competence.

As on many issues, Judge Roberts’s views on federalism are mostly unknown. His comments at his confirmation hearing for his current job on the U.S. Court of Appeals for the D.C. Circuit suggest a healthy respect for the ability of the federal government to regulate. Yet his first opinion as a judge seemed—at least tentatively—to embrace a narrow conception of the constitutional power on which Congress relies for so much policymaking: authority over interstate commerce. The commerce power, the subject of Mr. Specter’s missive, is the legal foundation for a huge swath of modern law. Civil rights, environmental and worker protections statutes all depend upon it. We have been sympathetic to the court’s interest in emphasizing its limits in recent years. But this has always carried the risk that the justices would go too far and gut Congress’s legitimate authority.
Judge Roberts’s opinion, which questions whether the commerce power is broad enough to permit the federal government to protect an endangered species within a single state, is a bit elliptical and underdeveloped. It isn’t clear if he is actually announcing his view on the subject or merely suggesting that the court should adopt a different intellectual strategy for upholding the environmental enforcement under attack in the case. But the opinion raises the concern that he would take a view of federal power more constrained than is healthy in a country with a modern economy, a mobile population and environmental problems that know no state borders.
If Judge Roberts proves an energetic states-righter, the short-term impact will be limited, since Justice Sandra Day O’Connor—a swing vote on many issues—was pretty protective of the states. Still, few believe Justice O’Connor was interested in emasculating federal power, as is Justice Clarence Thomas. Judge Roberts does not appear to be a radical either, but he is more of a wild card. He could end up crystallizing a vital center on the court if he takes a balanced view of Congress’s commerce power, as Justices Antonin Scalia and Anthony M. Kennedy did at the close of this term.
In a related area Justice O’Connor has voted often to insulate states from lawsuits for monetary damages under federal laws. This doctrine, found nowhere in the text of the Constitution, is one of the least appealing features of the court’s new federalism. In an interview in 1999 and in his Senate hearing for the D.C. Circuit, Judge Roberts seemed untroubled by the decisions, but his comments were hardly decisive. And Justice O’Connor has, in two more recent cases, given Congress more leeway. So once again, as a justice, Judge Roberts could easily make matters better or worse.
In his Senate hearings Judge Roberts is likely to follow the lead of past nominees and refuse to discuss his views of individual cases or to appear to commit his vote in future ones, and senators will have to be careful to keep the discussion on a plane on which the nominee can ethically engage them. But there is no reason senators cannot explore his views, in general terms, of the reach of national power, the rights reserved to the states and the method by which he would approach such questions.

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