James Leroy Wilson's blog

Friday, August 31, 2007

The Constitution Goes Only So Far

From Article 1, Section 8 of the Constitution: "The Congress shall have Power ...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

From Wikipedia:
The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had non-economic meanings in late eighteenth century English. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples". Interpreting interstate commerce to mean "substantial interstate human relations" is consistent with much additional primary source evidence concerning the meaning of commerce at the time of the writing of the Constitution. This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes.
John Marshall wrote: "Commerce, undoubtedly, is traffic, but it is something more--it is intercourse."

But does that give Congress virtually unlimited power in our human relationships?

William Watkins of the Independent Instititute say no:
Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. And because “commerce” must mean the same thing in relation to the states, Congress cannot regulate state agriculture either. (Congressional regulation of the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries would be consistent with Madison’s and Hamilton’s emphasis on goods crossing state borders, however.)
I think that is the key. Congress can only regulate things that enter the United States, and things that cross state lines. It has no jurisdiction over economic exchanges and "intercourse" within states, no more than it has jurisdiction over other nations.

I suppose the tricky part is discerning if production and intentions fall into the jurisdiction. A federal minimum wage law is unconstitutional, but can Congress prevent goods from crossing state lines that were produced by laborders paid below a minimum Congress set?

If something can cross state lines normally, can Congress prevent it from crossing state lines if it will be used for a purpose Congress doesn't like? For example, it's fine for a person to carry wads of cash over state lines, but can Congress prevent him from carrying it across state lines if he intends to use it to buy drugs?

These questions underscore the fact that the Constitution goes only so far in protecting our liberty. Some things Congress prohibits - such as growing medical marijuana for personal use - is outrageously unconstitutional, so that if the federal government respected Constitutional limits, that liberty would be restored. But friends of liberty generally can't rely on the Constitution to protect them. Crossing state lines with yourself and any possessions you may own, or sending your property across state lines, is potentially the subject of Congressional regulation under the Constitution.

A few months ago, I wrote that repealing the 16th Amendment will NOT "liberate" us or kill the income tax, because the definition of Constitutional "excise tax" includes taxes on wages. In the same way, returning to a correct and narrower view of the Commerce Clause may still leave Congress with overly-broad powers. The case for smaller government should be based mostly on moral and economic arguments. Citing the Constitution, particularly the Bill of Rights, may help. But in the end, even placing Constitutional limits on the federal government will still leave open the possibility for all kinds of bad and counter-productive legislation.


  1. Stop propagating the absurd myth that the Constitution "protects our liberties." No piece of paper can protect anything, let alone something that we have with or without it (unless you want to try to prove the contention that the people living before the Constitution were not free).

    The individual is free as long as he is not being coerced, and the Constitution is basically the means to establish a virtually unlimited government, with some "protections" written to try to appease its opponents. But those protections are PROTECTIONS AGAINST THE STATE IT ITSELF ESTABLISHES!

    Wake up and stop believing in pieces of paper.

  2. Is that not what I was saying?

  3. What you say is that the Constitution "only goes so far in protecting our liberties." How does a piece of paper founding a virtually unlimited government "protect our liberties" at all? Do you understand what liberty is?

  4. Like it or not, our civilization functions based on how people perceive and value things, including pieces of paper and the words printed on them.

    I believe the Constitution is quite clear in its meaning, and believe that living under a regime that followed it would be preferable to what we have now. I would also prefer a country in which the people knew what the Constitution says and means, and held their rulers accountable to it. I also believe the Constitution does limit the federal government more than you apparently think - that we'd have no Fed or War on Drugs, for instance.

    But, as my post indicates, it is not a guarantor of actual freedom. No government can bring that about. Moving to a limited, Constitutional government takes us in the right direction. It is not the solution.

    This blog will continue to analyze states, constitutions, and politicians. It will also express opinions and preferences within our corrupt, statist system. For instance, I might actually compare different tax proposals, voting, or party politics. I'm not going to justify that or explain myself every time.