Randy Barnett has a suggested amendment to restore it to its original purpose.
13 thoughts on “The Commerce Clause”
I have great respect for Barnett, but the solution is to strike the clause entirely.
The purpose of the constitution is to restrict government. It should use the simplest and most straight forward language as is possible. In most cases it should be silent so they can’t debate what the meaning of is, is. It should have the least and most explicit language needed to keep power out of government hands.
The states already have a solution to pollution. It does not require federal action. Let the states compete which they will anyway. Do not ever bail them out which distorts competition which is the best mechanism for fixing their problems. When enough businesses leave CA for TX; CA will fail. That’s a good thing. It forces CA to make different choices. But bail them out and they can continue their bad choices with all the effects it has on their population.
We need to start with eliminating the IRS perhaps with the Fair tax. Looking at who is against it and how they lie about it, is a good argument for it.
The original purpose was to keep states from placing tariffs on each other’s goods and otherwise engaging in trade wars.
Let them have trade wars. The best way to get rid of stupidity is letting the stupid be so stupid it’s obvious to all.
There was an attempt a few years back for one state to charge taxes on airplanes that simply traveled over it–the airplane didn’t land in the state, it just overflew it. That was quashed, I think on Commerce Clause grounds. Something similar could be attempted on freight traffic through a state (either via rail or road).
Because that’s worked so well here in California?
^ Exactly. The Framers had a lot of discussions about what they were trying to fix, and the problem was states that were trying to regulate trade to their own advantage, just as countries do. The intent of the fix wasn’t so much to give Congress control of trade, it was to take lower level control away from the states because state politicians would always abuse that power. States likewise don’t allow localities to enact trade barriers, because every farmer and factory owner would get his mayor and city council to pass “buy local” laws.
The Framers were taking away the power to control interstate commerce from the states like a parent taking away a pointy stick from a toddler. It didn’t mean they wanted Congress to run around poking everybody with a stick.
Anyway, I have issues with this clause of Randy Barnett’s suggestion:
“but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
What’s harmful in one state isn’t considered harmful to another. In California [i]everything[/i] causes cancer and climate destruction. That just invites Congress to keep pushing the boundaries of common sense, until its regulating dangerous apple emissions from Washington State.
The last part of the clause strikes me as a non-sequitur.
This is why the proper regulation is no regulation at all. There are better ways than giving politicians a stick.
I think the two lines about a pointy stick might be worth keeping.
Their over-reach is like taking the Third Amendment (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”), focusing on the last clause, and claiming the intent was to give Congress the power to require all privates dwellings and home-cooked meals to meet DoD standards.
How in the world do they decide that what can’t work at the local level is better at the national level?
How about leaving the Constitution alone and just getting SCOTUS to interpret the Commerce Clause as it was originally done for 100+ years?
Mucking about in the Constitution generally isn’t a good idea, and Prohibition still leads the pack in constitutional stupidity.
The Constitution doesn’t need changing; SCOTUS, POTUS and Congress do.
Rather than a constitutional amendment, could Congress and the Senate pass a law something along the lines of “all existing Federal laws regulating commerce solely within a state are inappropriate extensions of the Commerce Clause, and hence null and void.”
This probably would require a supermajority in both houses, since it is striking down existing law, but ought to be easier to pass than a constitutional amendment.
Repealing existing law requires no larger majority than passing law in the first place, fortunately. The flip side is that such a clarification as ordinary law would hold only until congress found it inconvenient. But such a law, clarifying the scope of valid federal law, would be a good precursor of any constitutional amendment making the clarification permanent.
How about an Amendment that clarifies and strengthens the 10th Amendment, and requires all bills to contain a specific reference to the enumerated power(s) from which they derive their Constitutional authority?
I have great respect for Barnett, but the solution is to strike the clause entirely.
The purpose of the constitution is to restrict government. It should use the simplest and most straight forward language as is possible. In most cases it should be silent so they can’t debate what the meaning of is, is. It should have the least and most explicit language needed to keep power out of government hands.
The states already have a solution to pollution. It does not require federal action. Let the states compete which they will anyway. Do not ever bail them out which distorts competition which is the best mechanism for fixing their problems. When enough businesses leave CA for TX; CA will fail. That’s a good thing. It forces CA to make different choices. But bail them out and they can continue their bad choices with all the effects it has on their population.
We need to start with eliminating the IRS perhaps with the Fair tax. Looking at who is against it and how they lie about it, is a good argument for it.
The original purpose was to keep states from placing tariffs on each other’s goods and otherwise engaging in trade wars.
Let them have trade wars. The best way to get rid of stupidity is letting the stupid be so stupid it’s obvious to all.
There was an attempt a few years back for one state to charge taxes on airplanes that simply traveled over it–the airplane didn’t land in the state, it just overflew it. That was quashed, I think on Commerce Clause grounds. Something similar could be attempted on freight traffic through a state (either via rail or road).
Because that’s worked so well here in California?
^ Exactly. The Framers had a lot of discussions about what they were trying to fix, and the problem was states that were trying to regulate trade to their own advantage, just as countries do. The intent of the fix wasn’t so much to give Congress control of trade, it was to take lower level control away from the states because state politicians would always abuse that power. States likewise don’t allow localities to enact trade barriers, because every farmer and factory owner would get his mayor and city council to pass “buy local” laws.
The Framers were taking away the power to control interstate commerce from the states like a parent taking away a pointy stick from a toddler. It didn’t mean they wanted Congress to run around poking everybody with a stick.
Anyway, I have issues with this clause of Randy Barnett’s suggestion:
“but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
What’s harmful in one state isn’t considered harmful to another. In California [i]everything[/i] causes cancer and climate destruction. That just invites Congress to keep pushing the boundaries of common sense, until its regulating dangerous apple emissions from Washington State.
The last part of the clause strikes me as a non-sequitur.
This is why the proper regulation is no regulation at all. There are better ways than giving politicians a stick.
I think the two lines about a pointy stick might be worth keeping.
Their over-reach is like taking the Third Amendment (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”), focusing on the last clause, and claiming the intent was to give Congress the power to require all privates dwellings and home-cooked meals to meet DoD standards.
How in the world do they decide that what can’t work at the local level is better at the national level?
How about leaving the Constitution alone and just getting SCOTUS to interpret the Commerce Clause as it was originally done for 100+ years?
Mucking about in the Constitution generally isn’t a good idea, and Prohibition still leads the pack in constitutional stupidity.
The Constitution doesn’t need changing; SCOTUS, POTUS and Congress do.
Rather than a constitutional amendment, could Congress and the Senate pass a law something along the lines of “all existing Federal laws regulating commerce solely within a state are inappropriate extensions of the Commerce Clause, and hence null and void.”
This probably would require a supermajority in both houses, since it is striking down existing law, but ought to be easier to pass than a constitutional amendment.
Repealing existing law requires no larger majority than passing law in the first place, fortunately. The flip side is that such a clarification as ordinary law would hold only until congress found it inconvenient. But such a law, clarifying the scope of valid federal law, would be a good precursor of any constitutional amendment making the clarification permanent.
How about an Amendment that clarifies and strengthens the 10th Amendment, and requires all bills to contain a specific reference to the enumerated power(s) from which they derive their Constitutional authority?