|The “Commerce Clause” – An Invaluable Constitutional Restraint against ObamaCare and Other Tyrannies from the Founding Fathers|
By Timothy H. Lee
Thursday, December 16 2010
The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes…
~The Constitution of the United States of America, Article I, Section 8
How symbolically fitting is this? During the very week in which we celebrate the original Tea Party hosted by Samuel Adams and the Sons of Liberty in 1773, a federal judge in Virginia declared ObamaCare’s central coercive pillar – its “individual mandate” – unconstitutional.
District Judge Henry Hudson, after all, affirmed one of the Founding Fathers’ core Constitutional concepts in rendering his decision. Namely, Judge Hudson took a step toward preserving the Constitution’s “Commerce Clause” from decaying into a meaningless dead letter.
So what is the Commerce Clause, and why is it so important beyond serving as a handy tool for defeating ObamaCare and the specific tyranny the legislation imposes?
As Alexander Hamilton explained in The Federalist No. 1, the Constitution itself was established to correct the “insufficiency of the existing federal government” – America’s original Articles of Confederation. In The Federalist No. 22, Hamilton detailed one particular manner in which “the defects of the existing federal system … concur in rendering that system altogether unfit for the administration of the affairs of the Union.” Namely, “[t]he interfering and unneighborly regulations of some States” over commerce actively traversing across state lines.
Hamilton illustrated the problem well by way of the German example:
“The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless. Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.”
Accordingly, Hamilton explained, our nation would descend into dysfunction without “a superintending authority over the reciprocal trade of confederated States” to ensure that “states shall not lay tolls or customs on bridges, rivers, or passages.” For that reason, the power “to regulate commerce among the several states” was granted to Congress by the new Constitution in Article I, Section 8.
Given the explicit terms used in drafting the Commerce Clause, as well as Hamilton’s explanation of its limitation to actual commerce passing between states, imagine the Founding Fathers’ surprise if someone suggested that federal authorities would someday exploit that clause to prosecute citizens for commercial inactivity in refraining from interstate trade.
The very notion contradicts the Constitution’s core concepts of limited, enumerated federal powers.
Yet that’s precisely the argument shamelessly advanced by the Obama Administration in defending ObamaCare and its mandate that every single free citizen of the United States purchase insurance under penalty of law. As recited by Judge Hudson in his decision, the Administration’s “argument is the notion that an individual’s decision not to purchase health insurance is in effect ‘economic activity.’”
Ponder that for a moment. Commercial inactivity constitutes commercial activity according to the Obama Administration’s Orwellian argument.
Fortunately, Judge Hudson would have none of it. On Page 22 of his ruling, Judge Hudson rationally “constrained the boundaries of the Commerce Clause jurisdiction to activities truly economic in nature and that had a demonstrable effect on interstate commerce.” Continuing on Pages 23-24, Judge Hudson explained:
“Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity… Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”
It says a lot about our current battle to defend individual freedom against insatiable government encroachment that Judge Hudson’s logic is even controversial or disputed.
On a more positive note, however, Judge Hudson provides a welcome reminder that every citizen must consider judicial appointments when entering the voting booth. It also reminds us that we can defeat tyranny and defend freedom – currently at the judicial level, and later at the legislative and executive levels.
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