Saturday, September 17, 2005

The "Commerce Clause"

It seems my last post showed up under yesterday. Meh. Today we are going to check out the 'Commerce Clause'. We mentioned earlier the 'Welfare Clause' and how it is not a hole in the Constitution from the strict constructionist perspective that Congress views it. But today we have lots of government welfare programs. Where did Congress find this power? That's right; the 'Commerce Clause'. This is very close to the 'Welfare Clause'. It is Section 8, Clause 3:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

If read with the beginning of Section 8, as appropriate, we get:

Congress shall have the power to regulate commerce with foreign nations, among the several states, and with Indian tribes.

Where's the hole here? "among the several states" is not defined effectively in this document. As such, the Supreme Court expanded it immensely. According to "Anderson's Business Law and the Legal Environment":

"In 1937, the Supreme Court began expanding the concept of interstate commerce. By 1946, the power to regulate interstate commerce had become very broad. By that year, the power had expanded to the point that it gave authority to Congress to adopt regulatory laws that were 'as broad as the economic needs of the nation.'"

Since the Supreme Court took the Living Document approach and read the Constitution differently, Congress suddenly had much more power than it had before. This is where we get welfare programs, business subsidies, Social Security, and much much more. The government has grown immensely from what it was originally intended to be. Again, whethe or not this is a good thing, I leave for later. I'm keeping it short today. Happy Constitution day!


It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can therefore be regulated by Congress. – David Friedman, The Machinery of Freedom

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