The Questions Elena Kagan Must Answer

Does the Constitution impose ANY limits on federal power to intervene, regulate or control The People’s personal lives or business activities?  If so, where in the Constitution does a Supreme Court Justice find those limits?

These are the questions Senators on the Judiciary Committee should ask Elena Kagan as her Confirmation hearing continues today.

Even if her confirmation by the Democratic party majority is a foregone conclusion the hearings can still be what liberals love to call “a teachable moment.”  There is in America a renewed interest in the Constitution and the timeless principles of liberty and individual autonomy that guided the visionaries who wrote it.  These hearings can focus public attention on the cancerous accumulation of Unconstitutional power in Washington.

The recently enacted ObamaCare legislation will force unprecedented government intrusion upon us, even including a requirement that every person purchase a government approved health plan. To counter complaints that ObamaCare was Unconstitutional Speaker Nancy Pelosi issued a press release that stated, in part:

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 is an outrage to anyone who understands the Constitution.  Unlimited government power was abhorrent to The Founders.  A Congress with unlimited power over any industry or sector was exactly the outcome they were determined to prevent.

Tragically, over the past century politicians and judges and Supreme Court Justices have brazenly twisted and perverted the 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 definitely not what the original text means.

In the Founders era the term “Commerce” had the same meaning it has today: buying and selling transactions, in this case across state lines. The purpose of this clause was to keep the states from erecting barriers to buying or selling across state lines.   The purpose was not to empower the government to run everything.  James Madison wrote in Federalist Paper #22 of problems caused by state governments that had attempted 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 an association of semi-independent jurisdictions:

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.

Clearly, this clause was meant to empower the new federal government to regulate interstate transactions, not the products or services that were exchanged in those transactions.  And if a transaction did not cross state lines – purchasing the services of a local physician for example – government was granted no regulatory authority at all.

So how could Pelosi claim the commerce clause, intended to regulate interstate transactions, grants her unlimited power to regulate physicians’ medical practices, dictate the terms of health insurance policies, and require every person to buy one?

The basis for Ms. Pelosi’s arrogant claim of unlimited power, was the Supreme Court’s decision in 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 was not an interstate commerce transaction.  Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.

But the government argued that Mr. 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.  Not only did the court expand the power to regulate interstate transactions to include regulating the amount of wheat product farmers could raise and sell, it was even extended to Mr. Filburn’s personal wheat harvest that was never sold to anyone!

Pelosi and her political allies believe 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 virtually any human activity could, however remotely, effect interstate commerce, we are now told by progressives that The Founders meant for Congress to have unlimited power to intervene and control every aspect of our lives.

The Bottom Line:

Does Elena Kagan agree with the political establishment that there are no limits on the power of the federal government? Or, does she believe Wickard v. Filburn was wrongly decided?  If Ms Kagan is not required to answer, the confirmation hearing will have been a useless, tragic farce.

If she does confirm her belief that the government has unlimited power and is still confirmed by the Democrat majority, Republicans will have the once-in-a-century opportunity – if they are up to the challenge – to redirect the national agenda away from vacuous slogans about hope and change, to restoration of Constitutionally limited government based on the principles of liberty and individual sovereignty.

1 Comment so far

  1. World Wide News Flash on June 29th, 2010

    The Question Elena Kagan Must Answer…

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