Tuesday, August 25, 2009

Part Three: The Constitutional Powers of Congress

"Let the [federal] government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves; and our [federal] government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants."
-- Thomas Jefferson

Under Article 1, Section 8 of the U.S. Constitution, Congress has the specific power to

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This is the famous, or infamous, "Commerce Clause" of the Constitution, known in the last century as the pry bar with which Congress has inserted itself into various areas of American life where it has no business. Thanks to a "progressive" interpretation of what is and is not "commerce," our government has strayed far beyond the intent of the Founding Fathers.

A key word is "regulate," which in the original sense meant "to keep regular." Simply put, to make sure that commerce continues to operate in a regular manner. The assumption of the Founders was that economic activity was governed by the unfettered choices of free individuals, working in a "for profit" environment. Capitalism, if you will.

A key principle of the Founders is that government may only exercise those powers granted to it by the people, and the people can only grant to a government powers they actually have as individuals. Regulating commerce is something individuals could do for themselves, but it made sense to "loan" this responsibility to the government for the sake of efficiency, because foreign governments and large individual states would more likely comply with a federal government enforcing the sovereign will of the individuals as a whole.

Simply: The federal government was charged with protecting an individual's right to buy and sell, without undue coercion or interference from anyone, including any government!

Why is a distinction made between Foreign Nations and "among the several States"?

While the federal government itself did not "trade" goods with foreign nations, its citizens did, and one of the responsibilities of the new national government was to make sure that American citizens were not poorly treated by foreign laws. The government thus monitored the conditions of trade and tried to create a level playing field if a particular government began imposing high import taxes (tariffs, duties or levies) on American goods.

Yes, we've been arguing the distinctions between fair trade and free trade for a long time.

Additionally, the new federal government realized that the imposition of tariffs at American harbors was a significant source of tax revenue. The Founders assumed that Congress would be smart enough to keep import tariff rates balanced so as not to make foreign trade irregular or unproductive. This hasn't always worked so well in practice. [See "Smoot-Hawley Tariff Act of 1929".]

Yet Congress was given the power to regulate foreign commerce because that's what national governments did. So far, so good.

Keeping commerce "regular" among the several states principally meant that the federal government forbade the imposition of tariffs and import or export duties between the states. It was government's job to make sure that the citizens of Oklahoma could trade with citizens in Kansas or Texas without penalty. You also did not want a group of states ganging up on another state by erecting trade barriers.

This was no small concern. In the early days of our Republic, there were many who thought each State should "go it alone," be totally sovereign. It was too much of this "go it alone" attitude that doomed the Articles of Confederation, the first constitutional government of the fledgling United States. The central government was weak to the point of anemia, and conflicts among regions were common.

The new Constitution took care of that by carefully creating a government of limited overall powers, separated the executive, legislative and judicial branches of the government and made absolutely sure that each branch could throw a wrench into any power grabs by any other. Yet, if the branches of government "played nice," then they would perform their constitutionally mandated roles smoothly and the people would be well served.

The Progressive movement has (successfully) expanded the scope of federal government by promoting a liberal interpretation of the commerce clause, claiming that any human activity that might in some remote way have an impact on interstate commerce is thus covered under potential federal regulation. A couple of unfortunate Supreme Court cases have upheld this view, even though it runs counter to the Founders vision of America and defies logic.

This is why Congress sees fit to authorize "Cash for Clunkers," which transfers money, via taxes, from one set of Americans to another based on their "need" to get rid of gas-guzzling automobiles. There is nothing in the Constitution that empowers this, save a ludicrous misinterpretation of the "commerce clause." The Founders would be aghast, as so should we.

An even worse example, however, is the Executive branch takeover of General Motors and its heavy-handed negotiated takeover of Chrysler in which majority ownership was stolen, through a strong-armed bankruptcy proceeding in which the government acted as the 600-pound gorilla in the courtroom, from those who owned stock and given to the United Auto Workers union (and the government).

Even if you agree that the "commerce clause" would allow Congress to legislate such an outcome, Congress was not involved. This was a naked and unconstitutional usurpation of power by the Executive branch.

I'm still waiting for someone to take a strong case to the U.S. Supreme Court. It is vital that this be overturned.

Finally, the Constitution gave the federal government the power to regulate commerce with "the Indian tribes." Sadly this became the vehicle by which the indigenous Americans were pushed out of their traditional lands, stripped of their pride and possessions, robbed of their individual liberties, confined to reservations or removed to Indian territory (now part of Oklahoma). By and large it is a tale of treachery and deceit largely white-washed by both liberal and conservative educators. It is a wonder the American Indians survived, but they have.

Today the federal government allows Indian tribes, as sovereign nations within the United States, exercise of a degree of autonomy unthinkable just a few years ago, although too often it is for the purposes of encouraging gambling and smoking, vices not necessarily conducive to a responsible citizenry. Since most of those participating are not Indians, I suppose you could rationalize that there is a certain amount of revenge taking place.

"Let vigorous measures be adopted; not to limit the price of articles, for this I believe is inconsistent with the very nature of things, and impracticable in itself, but to punish speculators, forestallers, and extortioners, and above all to sink the money by heavy taxes. To promote public and private economy; encourage manufacturers, etc."
-- George Washington, on the limited role of the federal government



At 10:48 AM, Blogger Dave said...

If my history memory serves, it was Alexander Hamilton (the father of American conservatism IMHO) that used the commerce clause to create the first national bank.

It seems to me that that particular clause has been used by both liberals and conservatives to pass a wide variety of things over the years.

Great post though. I think that a lot of people, on both sides, really don’t understand the Constitution as well as they should. It really is an amazing document.


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