A great many books have been written about the U.S. constitution. We have enjoyed some, particularly those which have pointed out problematic areas, clauses that the authors either regretted or wish could be fixed or just would prefer to be understood as they were when they were written.
Here we pull together the best thoughts, in our opinion, of various authorities on the U.S. constitution who have found clauses in it that have been ignored or misunderstood. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (so as to repeal or correct the problem clauses), and yet others would like an entirely new constitution.
The focus here will be on one of the 10 troubling constitutional clauses:
- The commerce clause
- The contracts clause
- The due process clause (amend 5 and 14)
- The privileges or immunities clause
- The equal protection of the laws clause
- The general welfare clause
- The necessary and proper clause
- The supremacy clause
- The takings and tax clauses
- The enumeration of rights clause (amend 9)
We start with the commerce clause. Article I, section 8, third paragraph reads “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The Commerce Clause
While many of the problem clauses have become problems in more recent times, the commerce clause has been mis-applied consistently from the Progressive Era. Rather than interpreting it in a narrow way (making trade regular between the states, and never within any state) Congress has applied it broadly.
This clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
The ordinary meaning (among the public when the constitution was written) of “shipping for the purpose of trade” is well-documented in Randy E. Barnett's book, Restoring the Lost Constitution: the Presumption of Liberty, (2004, Princeton , Princeton University Press), pp. 277-318.
In the case of Gibbons v. Ogden, Justice John Marshall found that Congress has the power to regulate navigation among the several states, that is, the movement by shipping of goods to be traded. The Supreme Court generally drew a distinction between production (manufacture, farming, and mining) and commerce or trading what was produced.
However, matters began to change in the twentieth century. In Swift v. United States (1905), the Court ruled that the clause covered meatpackers; although their activity was geographically "local," they had an important effect on the "current of commerce" and thus could be regulated under the Commerce Clause. The Court's decision halted price fixing. Stafford v. Wallace (1922) upheld a federal law (the Packers and Stockyards Act) regulating the Chicago meatpacking industry, because the industry was part of the interstate commerce of beef from ranchers to dinner tables. The stockyards "are but a throat through which the current [of commerce] flows," Chief Justice Taft wrote, referring to the stockyards as "great national public utilities." [see Wikipedia]
In 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corporation , the Supreme Court upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over unions across the country. In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In Wickard v. Filburn , (1942) the Court upheld the Agricultural Adjustment Act, stating that the act of growing wheat on one's own land, for one's own consumption, could have significant effect on interstate commerce if many farmers did the same, and therefore under the Commerce Clause was subject to federal regulation.
The trend for half a century was to consider commerce almost any activity, even production of goods that stayed within a state.
Only from 1995 on, beginning with the Rehnquist court did the Court return to a more limited understanding of commerce and the power of Congress over it. However there has not been a consistent application of the meaning of “commerce” as Randy Barnett determined that was there originally, “transportation for the purpose of trade,” which does need to be made regular among the states.
Whether by amendment or clearly interpretive law by Congress, we need to restore some sanity to the legal treatment of commerce. We should continue to allow Congress to impose rules on trade with other nations, although tariffs would be unwise. Trade between the states and with the Indian Nations should be regulated only in the sense of making if regular. No state should be able to take unfair advantage in the control of goods coming in or going out. That would “make regular” the transportation for trade among the states.
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