This makes me so very sad. Ruth Marcus must know, deep down inside, that the commerce clause of the Constitution does not allow for government-mandated health insurance. I would have a lot more respect for the columnist if she would acknowledge that the argument is a ridiculous, legalese way around the Constitutional limits on government but that we should do it anyway. At least then we would be having an honest conversation.
I realize some of you may not have a strong grasp about what I’m talking about, so here’s a brief history of the commerce clause.
Prior to about 1937, it was understood that the Constitution enumerated the powers of the federal government. In other words, it spelled out exactly what authority the federal government had. The bulk of these powers are enumerated in Article 1, Section 8, which begins with, “The Congress shall have the power to…” It then lists several very specific powers. One of those powers is:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes
Sounds reasonable. The Tenth Amendment later reaffirmed this idea that the power of the federal government was limited and reserved only to those powers granted by the authority of the Constitution.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Every single law passed by the Congress must be in accordance with a power delegated to the United States by the Constitution. Anything else can only be addressed by the states. This enumeration of government powers is in stark contrast to the enumeration of rights, most notably the Bill of Rights. While the Constitution must list everything the government is allowed to do, it does not list every right held by the people. (See the 9th Amendment).
Then the New Deal happened. Thanks to some political threatening, FDR was able to get the Supreme Court to allow some measures that had previously been considered clearly unconstitutional. In order to justify the constitutionality of the New Deal measures, the court accepted a vastly expanded scope of the commerce clause. In the 1942 Wickard v. Filburn, the court opined:
But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’
That decision gave Congress the power to set quotas on wheat grown on one’s own land, for one’s own consumption, within a single state, because it affected interstate commerce. The justification is that if the individual had not grown wheat on his own land, then he might instead have bought wheat from a business. That business might, in some way, have been engaged in interstate commerce. So the individual is affecting interstate commerce by not engaging in it.
That opened up the proverbial floodgate.
Today, we are in a situation that is reverse to the intention of the Constitutional writers. These days, most folks believe that rights are enumerated – most notably in the Bill of Rights (negating, of course, the second, ninth, and tenth). Federal powers, however, are unlimited and checked only by the democratic process.
That’s how Ruth Marcus can tell us, with a straight face, that a government mandate to buy a product is completely within the scope of what Thomas Jefferson, et. al. wrote in 1787.
Print This Post
