Shall We Wallow More in the Commerce Clause?

BETTER KNOWN IN LAW SCHOOL AS 'THE EVERYTHING CLAUSE'

IN MY NEW COMMITMENT to raise the flag of the Commerce Clause Run Wild Through the Land of the Once-Free--- with its monstrous, exponential growth effects on the Federal deficit, federal bureaucracy and onerous federal regulations into every aspect of our lives--- I want to link today to this piece in the Washington Times. It's written by Gary Galles, an economics professor at Pepperdine University, entitled A Chance to Refine the Commerce Clause.

This is the kind of thing I wouldn't read 20 years ago. Today I have it with my first strong cup of black coffee. It's essential that I'm better informed as to how we got in this mess and how we might get out. The bottom line, as far as I can tell, is that the Commerce Clause---as now used by our lawless Congress in Washington to rationalize any-and-every big government takeover it pleases, any-and-every redistribution of wealth stunt it can manufacture from the depths of its reptilian brain---has been wrecklessly misinterpreted and misused by federal lawmakers.

It's time this nonsense stopped. It's way past time, actually. The first step in my opinion is to educate ourselves. A little history from Galles piece above:

Under the Articles of Confederation, states were imposing duties on other states' goods. The Commerce Clause was designed to take that abusive power from the states by giving Congress the power to regulate interstate commerce; "regulate" meant "to make regular or normal" or "to remove impediments," but not to authorize federal control following the far different current meaning of "telling others what to do."

Federalist 11 indicates the Commerce Clause's intent as a limitation on states rather than federal carte blanche, "prohibitory regulations, extending... throughout the states," without which "this intercourse would be fettered, interrupted and narrowed by a multiplicity of causes."

He concludes his piece with tentative hope tempered with a chilling warning. I think we need to pray:

Health care reform offers hope that an important constitutional restriction will be taken seriously again. It also offers risk that it will be further gutted. That alternative is chilling for those without total faith in the federal government. As Chief Justice William H. Rehnquist wrote in the 1995 Lopez ruling: "If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."

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