Passive Resistance

Excluding inactivity from the Commerce Clause still leaves Congress with far too much power.

Ronald Reagan famously summarized the federal government's attitude toward the economy this way: "If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it." In January a federal judge added a corollary: If it doesn't move, don't regulate it.

In overturning the Patient Protection and Affordable Care Act, U.S. District Judge Roger Vinson said the law's requirement that every American obtain government-approved medical coverage exceeds Congress' power to "regulate commerce…among the several states." While all the other regulations that the Supreme Court has upheld under the Commerce Clause have targeted some sort of activity, Vinson noted, the health insurance mandate is aimed at the failure to buy something Congress thinks everyone should have.

For constitutionalists as well as ObamaCare partisans, this activity/inactivity distinction, which was embraced by another federal judge in December, leaves much to be desired. But it is preferable to the one-prong test that the Supreme Court has implicitly applied in almost every Commerce Clause case since 1937: If Congress wants to do something, who are we to stand in its way?

The main advantage of drawing a line between activity and inactivity is that it does not require overturning any of the Supreme Court's Commerce Clause precedents. That is also its main disadvantage.

The Court has strayed far from the original understanding of the Commerce Clause, which was aimed at eliminating interstate trade barriers. At the time the clause was written and for many years afterward, "commerce" was understood to mean the exchange of goods (as opposed to manufacturing or agriculture), while "regulate" meant "make regular" by removing obstacles. And believe it or not, "among the several states" meant "among the several states," as opposed to the intrastate activities that Congress routinely regulates nowadays.

This narrow understanding of the Commerce Clause prevailed well into the 20th century. It explains why the Supreme Court in 1918 overturned a federal ban on the interstate transportation of goods whose production violated child labor laws, concluding that the power to regulate commerce "is directly the contrary of the assumed right to forbid commerce from moving." It explains why the activists who achieved national alcohol prohibition in 1920 had to do so by amending the Constitution. It explains why the Court, as late as 1935, rejected federal regulation of employee hours and wages at businesses that were not engaged in interstate commerce.

But as Vinson noted, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce. That doctrine has led the Court to uphold federal regulation of activities, including the cultivation of wheat and marijuana for personal consumption, that are only remotely and hypothetically related to interstate commerce.

Since 1937 the Court has rejected just two federal laws on Commerce Clause grounds: a ban on gun possession in or near schools, overturned in 1995, and a civil remedy for victims of gender-motivated violence, overturned in 2000. Those decisions were based on the Court's reluctance to "pile inference upon inference" in a way that would leave no activity beyond the reach of the Commerce Clause, thereby erasing the constitutional distinction between state and federal powers.

But as Justice Clarence Thomas noted in both cases, that danger will persist until the Court revisits the "substantial effects" doctrine. "By continuing to apply this rootless and malleable standard," he warned in 2000, "the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits." Despite the apoplectic reaction to Vinson's ruling from ObamaCare's supporters, the Supreme Court will leave this situation essentially unchanged even if it ultimately endorses his reasoning. 

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Barely Suppressed Rage||

    Just heard reported on local radio that the SCOTUS has rejected A.G. Ken Cuccinelli's request to have the appeal skip the circuit court and go straight to the SCOTUS. So the next step is the 4th Circuit will hear the appeal of the district judge's ruling that Obamacare is unconstitutional.

  • ||

    Just for the record, ObamaCare sucks regardless of whether it's constitutional.

  • Arcaster||

    ^^ This

  • Cyto||

    Just for the record, the individual mandate is unconstitutional, regardless of how brilliant an idea it may be.

    This is the more salient point for those on the court (the vast majority) who seem to think it is their job to sus out the policy implications of a ruling or law.

  • OO||

    policy implications like the employeer mandate...which wont be overturned

  • Realist||

    Yes, but it will stand. This country is full of fucking idiots that is why they elected a sack of shit with big ears.

  • ||

    Got to have big ears or you wouldn't be able to pick up a big sack of shit.

  • ||

    The 4th has already scheduled oral arguments. It is on a very fast track there.

    My current guess is that this case will be on the docket for the next SCOTUS session. Meaning we will get a decision next year.

    Right in the middle of the Presidential campaign! Woo. Hoo.

  • mr simple||

    Good, just like it was scripted.

  • ||

    Where does the florida case stand? If any of the cases deserve the fast track treatment, it's that one. As a rule, multi-state suits should automatically go to the supremes.

  • ||

    Being a pessimist, this concept of limiting gubermint regulatory reach due to the commerce clause was lost long ago.
    For example, am I correct in pointing out that people HAVE to be covered by medicare at 65?

  • KPres||

    That's a tax, remember?

  • Realist||

    Yes. we are fucked!

  • Doktor Kapitalism||

    If I make it to 65, and that law is still in effect, and I'm still living in the United States, there'll be a wee bit of civil disobedience in my vicinity.

  • ||

    Rather unpleasant if true:

    http://www.telegraph.co.uk/new.....s-War.html

    Israel 'supplied arms to Argentina during Falklands War'

    Israel secretly supplied arms and equipment to Argentina during the Falklands War due to Prime Minister Menachem Begin's personal hatred of the British, a new book discloses.

  • AU H20||

    To be fair to Begin, he was molested as a child by a bowler hat.

  • ||

    The hat had a really thick cockney accent, right?

  • Old Mexican||

    Re: dbcooper,

    Israel 'supplied arms to Argentina during Falklands War'


    *I* would have supplied weapons to Argentina during the Battle For The Malvinas, if I could!

    Why would hatred for the British be the main reason for selling something of value?

  • ||

    You never fail to live up to your own high standards of idiocy.

  • BigT||

    OM - please explain yourself. The Falklands were a British possession invaded by Argentina (largely to provide an external enemy to take the people's anger off of their own corrupt govt).

    And giving them weapons would likely have merely gotten more Argentines killed, as the Brits had them out-gunned, and had US satellite intel.

  • Drax the Destroyer||

    This just in---Governments do a lot of evil shit all the time. Extra Extra! Read all About it!

    In other news, yes that is unpleasant but not surprising. The worst thing about this is how the U.S. will be implicated as an unwitting supplier/enabler to Israel in the first place. Entangling Alliances indeed.

  • ||

    If true it is a good example of why the UK should not offer Israel any support without clear benefits to the UK.

  • cynical||

    Hey, we give them support even after they bombed the shit out of one of our ships.

  • Drax the Destroyer||

    Yep, I think someone who went to Harvard with their hands on the money calls that Quid Pro Quo.

  • ||

    If only the US would do that.

  • ||

    And everyone else in NATO ...

    I'm still trying to work how we're going to benefit by rushing into the middle of a civil war right now.

    BTW, is Obama your Tony Blair? A blundering idiot who makes nice speeches, and continues the big gov status quo until there's no money left.

  • ||

    He's worse than Tony, I think. A complete moron charlatan but people will support him regardless.

  • Paul||

    BTW, is Obama your Tony Blair? A blundering idiot who makes nice speeches, and continues the big gov status quo until there's no money left.

    Obama is Clinton who believes what he says.

  • Paul||

    If true it is a good example of why the UK should not offer Israel any support without clear benefits to the UK.

    Isn't that how all foreign entanglements should be engaged?

  • Anonymous Coward||

    The Court has strayed far from the original understanding of the Commerce Clause, which was aimed at eliminating interstate trade barriers. At the time the clause was written and for many years afterward, "commerce" was understood to mean the exchange of goods (as opposed to manufacturing or agriculture), while "regulate" meant "make regular" by removing obstacles. And believe it or not, "among the several states" meant "among the several states," as opposed to the intrastate activities that Congress routinely regulates nowadays.

    What part of "living, breathing document" do you not understand? The Constitution is alive! And it would like a pony for Christmas.

  • Doktor Kapitalism||

    It can get its own pony*.

    Sociological jurisprudence is just stupid. No politer way of saying it. Going on the whims of the people in response to the emergencies of the moment means that no principle will be maintained. Anything can be done under infinite "emergency powers." The Constitution exists to protect us from such indulgences.

    *Can we make it a unicorn?

  • Anonymous Coward||

    Who needs principles when you have unelected technocrats with qualified immunity to tell you what to do?

  • AU H20||

    Krugman looks like he's tired of commentators disagreeing with him.

    Hasn't he already had a post about blog comments? The guy seems kinda thin skinned.

  • ||

    Yes, some months back when he decided to limit comments to 300 words.

  • Warty||

    Anyway, money and monetary policy are basically technical issues, albeit important ones. The fate of Western society is not at stake, nor is there a deep moral issue in allowing the purchasing power of the medium of exchange to depreciate modestly over time. Calm down, everyone.

    I won't forgive you for causing me to read some of his blog.

  • Tman||

    I just clicked. A pox on your house Goldwater.

  • ||

    Maybe you should look at the URL before clicking, Einstein.

  • AU H20||

    Remember kids: Only YOU can prevent the spread of stupid!

  • some guy||

    Why would anybody comment on his blog? Kind of pointless, don't you think? That guy has gone over the idealogical cliff and there's no coming back...

  • Anonymous Coward||

    they may be the same person, and in any case are presumably paid operatives.

    This just in! The only reason anyone, ANYONE, would disagree with Dr. Pauly Krugnuts is if they were paid to do so. There is no principled opposition to the Krugnuts, only sophistry.

    Now excuse me while I forcefully ram my head into this brick wall to try and unread Dr. Krugnuts' intellectual dishonesty.

  • ||

    Woooo, more work!

  • Old Mexican||

    But as Vinson noted, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce.


    As Tony would have us believe, reality itself was changed by the volition of a few New Deal judges, or what he calls with a crass sense of the euphemistic: "Case Law."

    And here I thought the most powerful beings in the Universe were the Time Lords...

  • Vermont Gun Owner||

    MNG also holds to the view that the Constitution means whatever the court says.

  • OO||

    ahem - what else could it mean?

  • Barely Suppressed Rage||

    You ignorance is exceeded only by your lack of grammar, spelling and punctuation.

  • OO||

    meaning what? SCOTUS "mistakenly" interpreted "original intent"? like what...that money is free speech?...which isnt in the text. or maybe "privacy" which is implied but not explict? lacking absolute meaning (like math), can the text ever mean anything other than what the court says?

  • OO||

    ^^ reply to dred below vv

  • I Don't Wipe||

    Nice balls!

  • Realist||

    Barely Suppressed Rage you tell'em LOL!!!

  • Dred Scott||

    The court never makes a mistake?

  • Zeb||

    Well, in a sense it does. THe law is applied as interpreted by judges. But judges should be more willing to overturn bad precedent, even if it is politically inconvenient. Everyone knows that the justices in the New Deal related decisions were under tremendous pressure from the President to decide the way they did. Why this is not seen as an abuse of presidential power, and why the cases have not been reversed can only be attributed to political expediency and has nothing to do with whether the case law is sound constitutionally.

  • KPres||

    Dumbass. If it means whatever the court says it means, then how do the courts arrive at what they think it means?

    You guys are lost in some serious postmodern dumbfuckery.

  • MNG||

    I do not. To say that is to say SCOTUS was correct that the Constitution mandates seperate but equal treatment in Plessey and somehow also correct in Brown to say that is unconstitutional.

    Just because my reading of the Constitution differs with yours does not mean I don't think mine is right regardless of what five justices say.

  • Vermont Gun Owner||

    Sorry, I guess. In a previous discussion that we had you didn't didn't understand why the difference between the SC's view and the actual meaning would be relevant to the discussion, and in fact seemed a bit confused at the distinction. It heavily implied that you view the two as equivalent.

  • MNG||

    No, I think the "expected application envisioned by the ratifiers" has little or no bearing on what the Constitution calls for. What matters is the plain meaning of the words at the time, and those two ain't the same thing at all.

  • MNG||

    So for example, many suggest that the ratifiers of the 14th never expected it to be applied to protecting whites from reverse discrimination. But who cares, the plain meaning of the words in the 14th would warrant it barring such a thing.

  • Neu Mejican||

    while "regulate" meant "make regular" by removing obstacles

    From the OED:

    a1425 tr. Guy de Chauliac Grande Chirurgie (N.Y. Acad. Med.) f. 154v, Of þe mesure of fleobotomie it ys seid þat þer may nouȝt be giffen a certane reule‥Neþerlez þe mesure is regulated [?c1425 Paris rewlede; L. regulatur] or rewled‥for to coniecture not only quantite‥bot also þe toleraunce or tholing.

    So it has meant that an activity is governed by rules since 1425 or so. The "make regular by removing barriers" meme is not substantiated by how the word was used at the time. Many instances of it being used with essentially the same meaning as it has today: which is to govern with rules and restrictions.
  • ||

    That still doesn't change the fact that the government can't force you to buy something you don't want to buy.

  • cynical||

    It can force you to buy government.

  • Neu Mejican||

    And, as such, the mandate is indistinguisable from a tax...arguments to the contrary notwithstanding.

  • Zeb||

    Except the taxation power is a specific and narrowly defined power to fund the government, not to force people to spend money on any arbitrary thing.

  • KPres||

    But they don't call it was a tax in the legislation.

  • Neu Mejican||

    I am not a big fan of the legislation, but it operates functionally like a tax. You get to either buy insurance or pay a fine.

    As Paul notes below...it is only technically a tax when the fine is paid...and even then you can, perhaps, distinguish between a fine and a tax. But it operates like a tax. It is "forcing commerce" in a similar way.

  • some guy||

    They could have just made everyone pay the "health care tax" each year. And then, if you bought health insurance, they could give you back the full amount of the tax as a credit on your yearly returns. That would have been a tax. This is a fine for inactivity.

  • Neu Mejican||

    some guy,
    Your plan would have been one way to get to the same place. It might have avoided many overly semantic unconstitutionality conversations, I am sure.

  • Collectivist parasite||

    Health care... tax? But Obama promised not to raise taxes on people making less than $250K/year.

  • MJ||

    Except Obama and the Democrats for political reasons denied it was a tax during the debate. The way they defined it makes it a fine, which puts it in the realm of due process.

  • Paul||

    And, as such, the mandate is indistinguisable from a tax...arguments to the contrary notwithstanding.

    It's highly distinguished from a tax. If the Government decided there was a public benefit to everyone drinking 2% and thus mandated that everyone buy 2% milk from whatever private companies are selling it, it's not a tax in any way shape or form.

    A tax goes into the government's revenue stream.

    When a tax starts going directly...directly into Darigold's revenue stream, it's not a tax.

  • Barely Suppressed Rage||

    So because some French(?) guy used it that way in 1425, that's what the Framers meant when they wrote it in 1789?

  • Neu Mejican||

    BSR...look at the whole entry. The "govern with rules" meaning of "regulate" was the dominate usage at the time the constitution was written...and for hundreds of years before. The idea that at the time "regulate" only meant to "remove obstacles" is MADE UP...I suspect because it fits with a preferred narrative.

  • Paul||

  • Neu Mejican||

    Paul,
    From your link: "To regulate" generally meant "to make regular"-that is, to specify how an activity may be transacted-when applied to domestic commerce.

    Nothing about only "removing obstacles."

  • ponchy||

    If you're honestly interested in the originally intended meaning of the word, it seems worthwhile to look at the entire sentence: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." There should be some semblance of congruity between the way congress can regulate commerce between the several states and with foreign nations and indian tribes (who I think were considered sovereign at the time). I don't think the clause was intended to allow congress to price fix in france or to force the english to buy american cotton. This is a clause about tariffs and trade restrictions, not about micromanaging internal economies.

  • some guy||

    You also have to consider the fact that the Constitution is a document laying out specific, enumerated powers. If the commerce clause allows Congress to enact any law it chooses, then why have the rest of the document?

  • BigT||

    Yes, the parallel construction implies that "with foreign Nations" and "among the several States" are on an equal footing. And as ponchy points out, Congress has no power over what goes on 'within' France or by any people with France. It ONLY refers to state to state transactions.

  • Rob||

    Yes, and to beg the question from MNG, why would The Constitution provide for itself to be amended? This is empirical evidence that the idea of a "living" constitution is laughable.

  • Neu Mejican||

    This is a clause about tariffs and trade restrictions, not about micromanaging internal economies.

    Your points are important. As BigT notes, the parallel construction of the sentences indicates something important. But nothing about imposing tariffs and trade restrictions fits with JS's fanciful "while 'regulate' meant 'make regular' by removing obstacles" usage.

  • Barely Suppressed Rage||

    Are you sure you're not MNG? Here's that old argument again, the "regulate" means "to make rules about". OK, fine, let's say the Commerce Clause was intended to empower the federal government to "make rules governing" commerce among the states. These "rules" were intended to regulate (yes, "make regular") commerce among the states.

    The power expressly is limited to regulating COMMERCE AMONG THE SEVERAL STATES.

    There is nothing there that empowers the federal government to require individual citizens to purchase anything. Congress is empowered to regulate - i.e., make rules to assure the orderly and regular functioning of - "commerce" that occurs "among the several states."

    Shit, this really is starting to get tiring.

    And I never will understand why so many people are so willing to try so hard to creatively argue for some strained justification in favor of the federal government having yet more power over our daily lives and to be able to tell us what we can and cannot do. "Oh yes, please enslave me! Yes, give me more government control! Of course it's constitutional! I can come up with all kinds of completely ahistorical arguments that have no support in anything written prior to the 1930s to justify why the federal government can regulate (which means make rules about) how I wipe my ass and blow my nose! After all, those things might someday affect something somehow related to commerce of some sort!

  • Neu Mejican||

    The power expressly is limited to regulating COMMERCE AMONG THE SEVERAL STATES.

    See the post-above. From 1937, this argument has had a harder time gaining traction. It is, however, a better argument.

    I don't think the way Congress went with reform in this law was a good idea. But, I find it ironic that textualists feel the need to invent implausible interpretations of common words to support claims about the "plain meaning" of "regulate."

    The commerce clause may not have been intended to allow as much as our current legal precedent indicates, but that doesn't mean that it was intended only to keep states from erecting barriers. It was, in plain language, meant to give Congress the power to establish rules for interstate commerce...it did not specify the nature of those rules.

  • Dred Scott||

    And the court never makes a mistake?

    And Stare Decisis says we have to live with those mistakes with no recourse?

  • Neu Mejican||

    Ds,

    It does make mistakes.

    And,

    No.

  • Oriana S.||

    If stare decisis is immutable, then Plessy v. Ferguson should still be the law of the land.

  • Zeb||

    I think you are probably right about the meaning of "regulate". The bigger problem, I think, is the abuse of the word "commerce" and the ridiculous notion that things that might affect interstate commerce can also be regulated as interstate commerce. Interstate commerce is when someone in one state buy something from someone in another state. That is all it is.

  • MNG||

    To me this is the sensible point. Once you accept Wickard you get a massive amount of things the government can regulate. Everything has some "indirect effect in the aggregate" on interstate commerce. The SCOTUS sensibly set up some limit in cases like Lopez, but it still leaves a pretty wide, perhaps absurdly wide, area open.

  • kinnath||

    Wickard is fundamentally wrong.

    This wass a blatant effort protect a law that had "desirable" benefits (at least in someone's eyes) regardless of what the text of the constitution or prior Supreme Court rulings said.

  • ||

    ""Wickard is fundamentally wrong."'

    SCOTUS could be fundamentally wrong on many things. That doesn't mean they are not enforceable though. Like it or not.

  • I Don't Wipe||

    This is why the government should outlaw abortion. Potential future taxpayers are being eliminated, which impacts us all.

  • OO||

    since most abortions are inner-city minorities, maybe no "future taxpayers" are being eliminated...except for the future pro-athletes

  • some guy||

    Or the government could mandate that all women must get pregnant as often as possible. You get even more future taxpayers that way.

    Broad interpretation of the Commerce Clause quickly leads to absurdity.

  • Rob||

    I'd like to see Congress mandate that everyone shall purchase a gun, or be fined.

  • Paul||

    While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed.
  • Zeb||

    Even if the broader definition were applied, there is still that tricky "interstate" part. Even if it means any gainful activity, it still has to be interstate for congress to regulate.

  • BigT||

    Zeb, it reads even more narrow that that. It is only commerce among the 'states' not the people within the states. It only impacts interstate government actions.

  • Zeb||

    Well that may be. I'm not entirely convinced of that interpretation. But the point is that even with a fairly broad reading, the current state of affairs is absurd.

  • MNG||

    " find it ironic that textualists feel the need to invent implausible interpretations of common words to support claims about the "plain meaning" of "regulate."

    +1

    "It was, in plain language, meant to give Congress the power to establish rules for interstate commerce...it did not specify the nature of those rules."

    +100!

  • Barely Suppressed Rage||

    Righto - Congress can create rules upon commerce among the states.

    Nowhere does the Constitution authorize Congress to impose regulations or requirements upon individuals who are NOT engaging in commerce among the states.

    The individual mandate is plainly, on the face of the words used, unconstitutional.

  • ||

    ""Nowhere does the Constitution authorize Congress to impose regulations or requirements upon individuals who are NOT engaging in commerce among the states.""

    Raich?

    Pot grown in CA for the sole purpose of CA citizens can still be regulated under the commerce clause.

  • Barely Suppressed Rage||

    I find it ironic that progressives feel the need to invent implausible interpretations of common words to support claims about the "plain meaning" of "commerce among the states."

  • Neu Mejican||

    That doesn't seem to fit the definition of "ironic" as progressives aren't typically trying to use the "intent of the framers" as the foundation of their argument.

    It is annoying.

  • KPres||

    But, I find it ironic that textualists feel the need to invent implausible interpretations of common words to support claims about the "plain meaning" of "regulate."...

    ...It was, in plain language, meant to give Congress the power to establish rules for interstate commerce...

    Nope. If they'd have meant that, they would have used the words "legislate" or "make all laws necessary and proper"; terms they used at other places in the constitution to imply more sweeping powers. Regulate is specific. It means to "make regular", to remove impediments.

    It's only come to mean "govern totally" in common parlance because of the way statists have distorted the clause as a justification for everything under the Sun.

  • MNG||

    So they gave Congress the power to "remove impediments" in determing the value of money coined, and the power to "remove impediments" of the armed forces?

    WTF?

  • Doktor Kapitalism||

    You have a point on the first one...

  • George||

    The New York Legal observer, Volume 4: 1846

    US District Court; First District Missouri
    The United States v. The Steamboat James Morisson
    7 July 1838
    The right to regulate commerce only extends to three descriptions of commerce: 1st, with foreign nations; 2nd, among the several states; 3rd, with the Indian tribes. It does not include perfectly internal commerce of a state. The commerce, to be subject to such regulations, must be among – that is intermingled with – the several states. If confined to one state alone, congress has not power over it. It would have been strange, if it was intended that congress should have the power to regulate every description of commerce, to enumerate only particular kinds in the grant. And such are the doctrines and opinions of the Supreme Court. In Gibbons v. Ogen, 9 Wheat. R. 194, that court says “It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and a man in a state, or between different parts of the same state which does not extend to or affect other states; such a power would be inconvenient, and is certainly unnecessary.” Again: “Comprehensive as the word “among” is, it may be properly restrained to that commerce that concerns more states than one.”

  • Barely Suppressed Rage||

    I find it ironic that textualists feel the need to invent implausible interpretations of common words to support claims about the "plain meaning" of "regulate."

    "Common words"? OK, sure, "regulate" is a common word, well known to us today. But the generally understood gist of the word to a person of modern sensibilities is quite different than its generally understood meaning in 1789, among the Framers and contemporaries who would be reading the document.

    There is nothing strained or far-fetched about it at all.

    Why were certain types of pendulum clocks called "regulator" clocks? Why were they known as having "well-regulated" mechanisms?

    It doesn't take much to read the writings of the Framers and contemporaries and from them reach the conclusion that a controlling government bureaucracy imposing cumbersome sets of rules upon individuals to control how they go about their daily lives and businesses was anathema to them and not at all what was contemplated by empowering Congress to "regulate" interstate commerce.

    The word "regulate" has various shades of meaning, and the one we instinctively understand is not necessarily the one the Framers did.

    Understand the context in which they were creating the Constitution and why they did, and you gain a better understanding of what they were trying to do. Hint: the Constitution was mostly about commerce and free trade.

  • Neu Mejican||

    There is nothing strained or far-fetched about it at all.

    I disagree.

    Why were certain types of pendulum clocks called "regulator" clocks? Why were they known as having "well-regulated" mechanisms?

    Nothing about those uses of the term is germane to our discussion. In the context of the commerce clause, the plain meaning of "regulate" has not changed substantially...it means "to govern through the making of rules." As it is today, it is largely synonymous with "legislate" or "make all laws necessary and proper"

  • ||

    Sorry. You're wrong.

  • Neu Mejican||

    Oh, then it is decided. Sorry.

    /sarcasm.

  • MNG||

    The states don't engage in commerce with each other. Clearly that refers to the "commerce that goes on between people of differing states."

    And regulate clearly meant what NM is referring to back then as other parts of the Constitution use it in that way.

  • MNG||

    "To coin Money, regulate the Value thereof"

    "To make Rules for the Government and Regulation of the land and naval Forces"

    Sure, they were just making the rules armed forces "regular"!

  • KPres||

    "To coin Money, regulate the Value thereof"

    Ummm...in this case it means exactly "to make regular" because they were talking about gold and silver.

    "To make Rules for the Government and Regulation of the land and naval Forces"

    Nope. If regulate means "to make rules" then this is redundant. So clearly, by it's inclusion here, "regulation" means something different than "to make Rules for the Government [of]".

  • MNG||

    I'd like to see how you get it to mean "remove impediments!"

  • MNG||

    And speaking of redundancy...

    "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws"

  • ||

    And speaking of redundancy....for the slower ones

    Let's make this easy dumbass. It's called an exception... except what may be absolutely necessary...As it was already understood that through the commerce clause the states would not be able to lay imposts or duties, but they would need a revenue source, they placed this exception to what was now a federal power in this section.

    Don't believe me...here is the debate record.........

    http://avalon.law.yale.edu/18t.....es_828.asp

    Mr. MADISON moved that the words "nor lay imposts or duties on imports" be transferred from art: XIII where the consent of the Genl. Legislature may licence the act-into art: XII which will make the prohibition on the States absolute. He observed that as the States interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the Legislature, to the injury of N. Jersey, N. Carolina &c-

  • ||

    Again, I post these links to Randy Barnett and Rob Natelson,absolutely refuting your contention. That I have in the past and you continue to spew your garbage shows you intend to be uninformed and argue from ignorance.

    http://randybarnett.com/Original.htm

    http://randybarnett.com/55ark847.html

  • ||

  • Neu Mejican||

    Len,

    Note than none of the discussions in your links support the use that I commented on above

    while "regulate" meant "make regular" by removing obstacles

  • ||

    And quoting the OED is in no way determinative of the original public meaning of the Commerce Clause. You are entirely out of your depth and, to wit, a fucking ignoramus.

  • Neu Mejican||

    And quoting the OED is in no way determinative of the original public meaning of the Commerce Clause.

    'Twas not my intent to determine "the original public meaning of the Commerce Clause," but to comment on JS's fanciful interpretation of a single word. Keep up.

  • Neu Mejican||

    Nope. If regulate means "to make rules" then this is redundant. So clearly, by it's inclusion here, "regulation" means something different than "to make Rules for the Government [of]".

    This sentence, actually, is direct support for the fact that the authors understood that "rules" are needed to "regulate." "To make rules for the regulation of" is another way of saying "to regulate." If you want to argue that there is a difference between "government" and "regulation" based on this sentence, you might be able to do it, perhaps.

  • LB||

    The states don't engage in commerce with each other.

    The States can engage in commerce with each other. Are you denying that the State of Nevada cannot sell surplus furniture to the State of Alabama?

    Clearly that refers to the "commerce that goes on between people of differing states."

    It is only clear after you add your own words to the document. This handwaving indicates that you have no real refutation against the argument Article I, Section 8, Clause 3 of The Constitution of the United States (aka, the Commerce Clause) only gives power to the Congress to regulate the interchange of goods or commodities with any foreign national government (foreign Nations), between state governments (among the several States), and tribal governments (the Indian Tribes).

    In other words, a Frenchman is not the government of France, an Oregonian is not the government of Oregon, and a Navajo Native American is not the tribal government of the Navajo Nation. To conflate them would be to try to redefine the Commerce Clause into a definition that you want rather than the correct definition based on the actual words.

  • LB||

    Are you denying that the State of Nevada cannot can sell surplus furniture to the State of Alabama?

  • LB||

    Are you denying that the State of Nevada cannot can sell surplus furniture to the State of Alabama?

    There we go (thought del could be used for strikethrough).

  • ponchy||

    MNG said: "The states don't engage in commerce with each other."

    Yes they do, but more importantly, at the time the commerce clause was written, various states were imposing interstate trade bariers and tariffs with each other, and this is what the clause is referring to. That doesn't happen anymore only because the commerce clause stripped them of that power.

    I know what you mean when you say states don't engage in commerce with each other, but similarly, you can say that countries don't engage in commerce with each other, so the clause must refer to the "commerce that goes on between people of differing countries." And now you're saying that it's within congress's purview to impose an individual health insurance mandate on the people of canada or viet nam. The laotians must buy health insurance from a federally approved american insurance company. That's as absurd, obviously, less obviously it's equally and identically absurd as saying it's within congress's purview to impose such a mandate on the people of the several states. The federal congress regulates trade barriers and tariffs both around the states (with foreign nations and indian tribes) and between the states. That is all the constitution authorizes.

  • ||

    ""Yes they do, but more importantly, at the time the commerce clause was written, various states were imposing interstate trade bariers and tariffs with each other, and this is what the clause is referring to. That doesn't happen anymore only because the commerce clause stripped them of that power.""

    ^^This^^

    I trying to point out that if you go back to Pre-USA, commerce among the states was really screwed up, and needed to be more unified (regular), including the value of currency used by different states. That's the reason only the feds can issue currency, so a dollar with be worth a dollar no matter which state you are in.

  • BigT||

    But prior to the founding of the USA, the states imposed tariffs and fees. This is what the commerce clause was intended to regulate.

  • LB||

    Big T,

    It doesn't matter what the commerce clause was supposed to remedy. It only matters how it was written and looking at the words.

    -- A panda bear enters a restaurant and eats shoots and leaves.
    -- A panda bear enters a restaurant and eats, shoots and leaves.

    Comma placement completely changes what the sentence means. Likewise, the omission of certain words changes the meaning of the clause. The commerce clause does not say Congress has the power to regulate Commerce between persons residing among the several States. The reason MNG even bothers to say, "Clearly that refers to the "commerce that goes on between people of differing states." is because he knows it doesn't say what he wants it to say. Instead of dealing with the implication of reading the clause clearly, he chooses instead to enter bracketed text that reflects the way he thinks the clause should be read, instead of how it is actually read. It is the equivalent of ignoring the existence of the comma in the panda example because that's what you think is the original intent of the sentence's author.

    ponchy,

    I've argued this point before, but Obamacare defenders usually point to the issue of jurisdiction with foreigners on foreign soil. And the response I've always given is that the federal government, through the Constitution, has arrogated to itself the jurisdiction of all people on Earth through its power to declare war and summarily execute any person it declares war upon. The only limits to this power are anarchic political and economic restraints that rule all international relationships. So, if it can execute anyone in the world, surely it can require anyone to buy health insurance from one of its approved exchanges (enforcement is another issue altogether).

  • MNG||

    "Shit, this really is starting to get tiring."

    Straining to get the actual words of the clause to support your interpretation is going to do that...

  • KPres||

    Yep, trying to get "regulate" to mean "to make regular". What twisting!

  • Barely Suppressed Rage||

    If the Constitution means what the SCOTUS says it does, it is interesting to note that the SCOTUS in D.C. v. Heller had this to say about the Second Amendment's use of the term "well-regulated":

    Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
  • Paul||

    Straining to get the actual words of the clause to support your interpretation is going to do that...

    Right, like the government mandating that I buy 2% milk is "A Tax".

    Talk about strain.

  • Neu Mejican||

    I was just borrowing the H&R idiomatic use of tax. Technically it is not a tax. But your wallet can't tell the difference.

  • Neu Mejican||

    Oops, tag fail. From "So it has meant..." on is me, not OED.

  • KPres||

    More like logic fail.

  • ||

    HANDWRITING analysis of chalkboard.

    If that is indeed Obama's handwriting (in photo) on the chalkboard, then what we have is a rather unstable, self-centered, and immature person.

  • kinnath||

    The first problem shown by that photo is that Obama is an accursed lefty.

  • OO||

    alotta brillant folks are lefties

  • kinnath||

    It appears he's left-handed as well.

  • Realist||

    Good one.

  • Barely Suppressed Rage||

    As someone who is left-handed (at least for certain purposes, including writing), I must remind all that everyone is born right-handed; only the greatest can overcome it.

  • Zeb||

    And kinnath was seriously suggesting that left handed people are cursed and probably consort with the devil.

  • Left-handed people||

    We are, and we do!

  • MJ||

    Lefties are sinister.

  • Barely Suppressed Rage||

    Leave us not forget that George W. Bush also is left-handed.

  • kinnath||

    There you go.

  • ||

    "The first problem shown by that photo is that Obama is an accursed lefty."

    How gauche.
    How sinister.

  • ||

    Thanks for mentioning the Prohibition requirement in the constitution. It is blatantly unconstitutional for the fed to ban cannabis within eg California, but the "commerce" clause has been
    whored out so much..

  • ||

    I have "volunteered" to be on a state bar panel discussing the Constitutionality of ObamaCare. Since the other attorney on the panel will likely be from the AG's office, I suspect I will be taking the position that ObamaCare is Constitutional.

    That will be interesting.

  • A Serious Man||

    I'm sure there is a leigitimate, albeit wrong, legal argument to make for the insurance mandate, but have you noticed that whenever you question Obamacare's legitimacy with a leftist or a hardcore Democrat, you get the whole song and dance about evil insurance corporations and that only teabaggers think it's unconstitutional?

    So in effect, the main argument in favor of the insurance mandate is that it's SO Constitutional that you'd have to be stupid or a teabagger to argue in favor of it. It's posioning the well, argument ad hominen, argument ad potentiam, and a non-sequitir all rolled into one!

  • ||

    Personally, I am begining to think that any real reform, i.e. downsizing, of the federal government will require the overturning of the commerce clause.

    Until you limit the ability of the government to force its way into areas it should not be in, it will continue to try to expand.

  • ||

    The only thing that will downsize the federal government is economic collapse, but in the meantime while we wait for the shit to hit.......

  • ||

    The only thing that will downsize the federal government is economic collapse,

    That's the necessary but not sufficient first step, I'm afraid.

    Right now, the form of our succeeding society is being fought over in the war of words about whether our current difficulties are due to the failures of the free market, or the impositions of an overreaching government. If the first narrative wins, the next go-around will have a big old, no kidding, authoritarian government.

  • دردشة عراقنا||

    thanks

  • العراق||

    thanks

  • Ricky||

    Thanks ForSharing

  • منتديات عرب||

    thnx u man

  • العراق||

    thanks

  • nike shox||

    is good

  • قبلة الوداع||

    thank u man

  • منتديات العراق||

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