[the congress shall have power…] “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”The part of that statement which so much debate has been centered upon is “To regulate commerce…among the several states." Luckily we do not have to be confused as to what the framers meant, as they clearly laid out their intent in their writings. reading their correspondence, there should be no debate at all what the proper understanding of those words should be. But as was pointed out yesterday, the small minority of our non-representatives who would hazard a guess as to where their unlimited power is derived from, will likely quote this clause.
Indeed Speaker Pelosi issued a press release on her website in September 2009 where she expressly said just that: Health Insurance Reform Daily Mythbuster: 'Constitutionality of Health Insurance Reform'
“… 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.”So according to this widely held interpretation these 16 words nullify the tenth amendment. IF congress can regulate the commerce that goes on within a state because the prices and availability of a product or service in one state impacts the prices and availability in another, then there is literally no end to what they can control. How convenient for them. This is clearly not what the founders meant. The original intent of the framers is clear. Madison said to Cabell :
“For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.
Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”Remember, until the mid 20th century any goods received from a foreign nation were received by ship. This put States without ports and harbors at a serious disadvantage to states who did. Imagine Kansas or Oklahoma's vulnerable situation if they had to pay taxes on every product imported to every state that was crossed en route to the final destination. imagine a ship from China delivering products to the port in Long Beach, CA en route to Kansas. California could then charge tariffs to Kansas, and every state subsequently after that could charge both CA, and KS, as the product moved across their borders. What a nightmare that would be. This is the reasoning behind the Commerce Clause. The purpose of the Commerce Clause was to keep this internal turmoil out of trade, to allow all the states to access shipping and receiving points. This is further explained in Federalist #42, and Madison mentions that one of the reasons for this language’s inclusion into the constitution was because it was a noted weakness of the articles of Confederation as well as several Nations in Europe at the time.
Allow me to translate into more easily understood language.
I did not refer to the "power to regulate commerce among the several States." [in my response]. I purposefully left that part out because I always thought that in the future people would misunderstand the meaning unless it was put into context. If not, it would be too easy to extend this power to the same level as the power reserved to the federal government to regulate relationships with other nations. It is very clear that this language grew out of an abuse of power by states that had ports and harbors against states that did not. The language was intended as a protection to keep one state from harming another by restricting its trade, not as an additional power given to the Federal government over the states; however, the Federal government is the only agency we could give this authority to, and so we did.
It was meant as a restriction on states from harming other states, not to create an all encompassing evil overlord Fedzilla government.
Unfortunately over the years the courts have wavered back and forth on this issue and the most recent passing of the buck by the court has been this:
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),
Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated.The recent Firearms Freedom laws are set to test this theory, but it is unlikely from the above decision they will. Folks, if we don’t like Pelosi et. al. view of things, we have to vote them out, because the courts are likely going to take a pass on this. This may be one of the most important litmus tests on a prospective candidate, “what is your opinion regarding the proper role of the Fed with respect to the Commerce Clause”