The Constitution once served as a firewall between us and those who would harness government power to control our lives.
But the progressives believe an elite few can make us better through massive bureaucratic control. With a single word, “effect,” progressives empowered themselves to defy Constitutional limits on government power. They now claim their power over us is, using Nancy Pelosi’s word, unlimited.
Florida Attorney General Bill McCollum, a former Congressman, announced that Florida and 8 other states are filing a lawsuit in Federal Court to overturn ObamaCare. Quoting McCollum:
There are two basic principles here. Number one that Congress has exceeded its powers in terms of its requiring the individual mandate that anybody has to buy a health care policy or suffer a penalty of some sort, a fine or a tax. And number two that it violates the 10th Amendment rights of the states in that it goes far beyond an unfunded mandate and literally would cost the State of Florida alone billions of dollars . . . .”
We certainly wish Mr McCollum well. And, this reasoning is fine as far as it goes. But he begins at a point of weakness.
We already know the argument the government will present to the court in defense of ObamaCare. Speaker of the House Nancy Pelosi gave us a preview back in November with a press release called, “Health Insurance Reform Daily Mythbuster: Constitutionality of Health Insurance Reform.” Her reasoning was typical of The Left’s abuse of the Constitution:
The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states … or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.
This defiant declaration by the Speaker of the House, that the authors of the Constitution intended to grant Congress “unlimited” power over an industry or sector is heresy. Unlimited government power was abhorrent to The Founders. It was exactly the outcome they were determined to prevent.
But, over the past century politicians and judges and Supreme Court Justices have brazenly violated the clear language of the Constitution and turned the vision of The Founders on its head, largely through deliberate misinterpretation of what is known as the commerce clause:
“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
A review of the Federalist Papers and other contemporary writings makes clear that the modern interpretation of this clause as expressed above by Pelosi is not even close to the original meaning of the text.
In the Founders era the term “Commerce” did not include productive activities such as manufacturing, or agriculture or providing medical services. Commerce meant buying or selling transactions.
The intent of this clause was to grant Congress the power to make rules governing the manner by which people may buy, sell or exchange goods from state to state, in order to prevent individual states from erecting unnecessary barriers to transactions across state lines. James Madison wrote in Federalist Paper #22 of problems caused by state governments that were attempting to interfere with commerce:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.
Madison cited as a negative example the German empire that, similar to America, was at the time an association of semi- independent states:
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.
The basis for Ms. Pelosi’s arrogant claim of unlimited power, is a series of Supreme Court rulings, beginning with Wickard v. Filburn, 317 U.S. 111 (1942). During the Great Depression Congress had imposed limits on crop production, in an effort to help farming businesses at the expense of everyone else by artificially reducing food supply, which would cause food prices to rise.
Mr. Filburn was fined by the government for violating the limit by growing “too much” wheat. He argued that his entire wheat crop was consumed on his own farm, mostly as chicken feed, and was not sold to anyone and therefore could not be considered interstate commerce. Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.
But the government argued that Filburn affected interstate commerce by growing his own wheat rather than buying it on the open, interstate market. The court took the government’s side and the rest is history.
The Obama-Pelosi-Progressive view is that any idea a politician can conceive is Constitutional as long as it involves an “effect” on interstate commerce. Since it could be argued that almost any human activity may, however remotely, affect interstate commerce, we are now told that The Founders meant for Congress to have, using Pelosi’s words, “unlimited power” to intervene and control any aspect of our lives.
Progressives claim they can harness the power of government to stop you from doing anything, or make you do anything they wish, because anything you do or don’t do has an effect on interstate commerce.
Attorney General McCollum must begin his Constitutional challenge to ObamaCare with the expectation that the court will be biased toward following the “effects interstate Commerce” precedent. Thus, instead of arguing the obvious, that ObamaCare’s 3500 pages of arcane regulation, taxes, fees, fines, and levies is a blatant affront to the Constitution, he is reduced relative hair splitting over the requirement that individuals buy insurance, and the cost to the states.
The Bottom Line
The only way to stop government encroachment in our lives is to elect people to Congress who will obey the Constitution, even though the Supreme Court has ruled that they are no longer required to.