By Seth Richardson
Having only lately been informed of the sterling educational website Constituting America, created by actress Janine Turner (of Northern Exposure fame), I came late to the ongoing educational effort to reclaim lost knowledge on the founding documents of our nation, and what our Founders had to say about the Constitution. But I’m glad I heard about it on the Glenn Beck show last week. I commend the site to everyone and encourage you to join the debates. For your edification, I will be reposting my contributions here as well. To gain the context, please visit the site, where debate on each section is opened by a guest expert, and links to the documents themselves may be found.
Comments on the Federalist Papers No. 33
By Seth Richardson, June 11, 2010
Professor Knipprath writes, “Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.”
Indeed, there is the rub. Hamilton’s trust in the ultimate supremacy of the People to exercise control over an out-of-control government becomes misplaced when the Supreme Court colludes to expand the reach of Congress rather than seeking always to constrain it in the interests of liberty. Hamilton says, “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
All well and good under a system where it is the People themselves who, through the representative process or through the power of Amendment, or at gravest need by resort to force, can restrain the excesses of a tyrannical government. But in a nation of 300 million, few of whom are prepared to take up arms against their own government, and most of whom believe to one degree or another in the rule of law and have an abiding respect for the Supreme Court, the check and balance Hamilton places so much trust in becomes attenuated to the point of dysfunction.
Once the Supreme Court arrogated to itself the ultimate authority to dictate by the Rule of Nine what the Constitution means in the Progressive mode, the elastic “Necessary and Proper” clause becomes the fetter that the federal government may affix to both the States and the People for so long as the People are unwilling to dissolve or revoke the plenary authority they have granted to Congress.
The root of this particular evil is not in in the Necessary and Proper Clause, but rather in the interpretations of the Commerce Clause, which, viewed expansively by the Supreme Court, as it has been, vastly expands the power of Congress to meddle in state and local affairs merely because some aspect of commerce might somehow “affect” interstate commerce.
But this near-plenary power to regulate even the amount of wheat or corn a farmer can grow on his own property for his own use that never enters commerce at all, much less interstate commerce, provides Congress with much more power and reach than ever contemplated by Hamilton or any of the Founders.
Federal supremacy is of course necessary for any Republic to function, but the constraints Hamilton speaks of to the enumerated powers of Congress have functionally ceased to exist through the complicity of the Supreme Court in viewing the powers of Congress under the Commerce Clause expansively, rather than restrictively, as the Founders intended.
Prior to the Progressive era, beginning roughly in 1900, the Supreme Court largely took the position that the Commerce Clause was (as the Founders intended) a federal authority to deal with disputes “among” the several states regarding interstate commerce. Prior to the formation of the nation, colonies tended to levy imposts and duties on goods from other colonies that passed into or through them. The intent of the Founders was to create a nation where commerce could flow freely among the several states without undue interference from the states themselves through attempts to tax or restrict trade.
The Supreme Court, prior to the Progressive era, stood pretty firmly against the proposition that Congress could in any way regulate commerce that took place entirely within a single state, as that was the province of the States under the Separation of Powers Doctrine.
Beginning with Teddy Roosevelt and Woodrow Wilson, both Progressives, and radically expanded under FDR’s New Deal, the Court began deferring to Congress when it came to regulating interstate commerce, taking the position that such regulation was a political, not a judicial matter, which has lead directly to Congress overreaching itself to arrogate power and control over the national economy through the Commerce Clause.
Blame it all on the Progressives, because it’s certainly their fault, and the Court has been colluding with them for nearly a hundred years.
The solution is a Constitutional Amendment that restricts Congress to regulating ONLY the acts of the several States affecting ONLY commerce that actually, physically passes between two or more states. That Amendment alone would strip the federal government of most of it’s unlawfully assumed power and return it to the states, where it belongs.
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