The Clauses – part I

Christmas may be over, but soon the 114th congress will be in session and the clauses will be used once again to expand the jurisdiction and help nationalize our federal government.

By clauses I am referring to:

  • General Welfare
  • Commerce
  • Equal protection
  • Establishment
  • Full faith and credit
  • Due Process
  • Supremacy

These are just a few.  The constitution is broken down into Articles, Sections and Clauses.  But the clauses must remain in context to understand the real meaning.  It seems very popular to use them out of context to make a case, make a federal case out of a topic of interest or cause one would like to see changed.  But it is most often, by convenience, a misreading of the constitution, a way around its restrictive, enumerated powers.  In general, a way to give the federal government jurisdiction over the issue and move the power away from local governments to the national level, to nationalize our federal government, create a one size fits all set of laws.  This is a dangerous precedence, one often allowed through ignorance of the constitution and federalism.  While you may think it’s great for your cause or issue when your party is making the claim, it will allow another party to make the same claim while taking an opposing view to yours.  It is a slippery slope and very often irreversible.  See my previous post on Jurisdiction and the Division Of Power, our founders planned for this by giving us federalism and a republic with dual sovereignty, sovereignty to our individual state and to the United States.

So let’s try to put the above clauses into context.  I personally prefer to error on the over restrictive side.  If there is a restriction at the federal level, it can be corrected or handled by state or local governments.  The states can be mini laboratories of democracy.  We can see how the practices work in other states before we change the law in our own state.  We also have options, an out, we can vote with our feet.  We can move to live under the laws we create and agree to.

“Laboratories of democracy” – is a phrase popularized by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann to describe how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939

General Welfare
The General Welfare clause shows up twice in the constitution.  In the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

And later in Article 1, Section 8 (in the enumerated powers)

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Note, Section 8 continues on to further enumerate the powers given to congress.  Section 9 further refines that power by restricting specific powers and Section 10 presents restrictions to the states.  But “general welfare” is in context of the union.  “In order to form a more perfect union and to provide a common defence and general welfare of the United States.”  The only time individuals are mentioned and it is still in a context of the total people of the United States is “Secure the blessings of Liberty to ourselves and our Posterity”   So the “General Welfare” is the security and liberty of the states.  To ensure that the states can continue and thrive to protect our life, liberty and property.  If the goal was to give up the power of the states, the states would have never ratified the constitution.

Also note that the start of Section 8 referenced above is also known as the “Spending Power”  Through the collection of money to pay debts, provide for the common defense and general welfare, congress has the power to tax and spend.  So, putting items in the scope of general welfare for spending purposes, increases the power of congress.  If congress funds it, congress can control it.

James Madison expressly said The Constitution does not give a general grant of legislative authority to Congress! – Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power.

Following the opening of Section 8 are approximately 20 enumerated powers granted to congress to carry out its “mission.”  as James Madison defended in Federalist 41:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

Article I, Section 8 says “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  Generally taken to mean interstate commerce, foreign commerce and Indian commerce.  Commerce between two people in the same state are outside the jurisdiction of the federal government.  Furthermore, while it may even effect the greater commerce among the states, it is still not commerce taking place between or among states.  All important distinctions.  It would be very easy and this has been done many times over, for the federal government to get involved in intrastate commerce, therefore overreaching its power and nationalizing laws best dealt with by the states.  Never a good idea, even if you agree with the law being passed.  Never ever be ok with giving power away to a centralized group in a distant place.

Article I, Section 9 also says “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”  This does not protect the commerce of a state, it only stops the federal congress from favoring one state over the other, one port over another.  It also unites the states as a single entity for commerce.  Again, Section 9 is about things that congress cannot do, the restriction of power.  (thus protecting state’s rights and our liberties.)

Here is an excerpt from Wikipedia about a famous commerce clause case:

In Wickard v. Filburn (1942) the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat. The Court found that Congress could apply national quotas to wheat grown on one’s own land, for one’s own consumption, because the total of such local production and consumption could potentially be sufficiently large as to impact the overall national goal of stabilizing prices. The Court cited its recent Wrightwood decision and decided that “[w]hether the subject of the regulation in question was “production,” “consumption,” or “marketing” is, therefore, not material for purposes of deciding the question of federal power before us.” The Court re-iterated Marshall’s decision in Gibbons: “He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes.” The Court also stated that “[t]he conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.”

So, this extended congress’s power to situations that had an effect on interstate commerce even when no interstate commerce had occurred.  Again, this may have felt like a good idea but, (I do not believe it was and do not feel that it is the federal governments job to stabilize the wide fluctuations in the market price for wheat) there are unintended consequences and it is hard to limit power when the test is “does it impact” rather than “is it” Interstate commerce.  There are many federal laws and regulations that are deemed constitutional because they are trying to limit the “impact” on interstate commerce.  By whose measure?  Using what specific enumerated power?

The following link has a list of famous Commerce Clause cases.  While the goal and outcome of the case may be admirable, using the commerce clause to give congress jurisdiction is a reach in many of the cases, see what you think, or how you read them now, knowing this.  Remember once the power is given, the jurisdiction expanded, precedence set, it is hard if not impossible to reverse.

Many of F.D.R’s new deal programs were being struck down by the supreme court as unconstitutional based on the commerce clause and a more strict reading of the constitutional intent.  In 1936 F.D.R set out to “pack” the supreme court with his “Judicial Procedures Reform” bill of 1937 in which he could basically appoint an additional justice to the court, up to a maximum of six, for every member of the court over the age of 70 1/2 years.  This could have expanded the bench up to 15 justices, the constitution does not prescribe the makeup of the supreme court.  The bill was held up in the senate judiciary committee.  Meanwhile the decision rendered in the West Coast Hotel Co. v. Parrish case in favor of the new deal was released and seen as a retreat by the justices and became known as “The switch in time saved nine.”  There were many cases that followed, greatly expanding congresses power, specifically using the commerce clause.  Even though the actual power was not granted in the constitution.  Just as Madison claimed was not possible or intended and concerned his adversaries.  Just as other powers were expanded with these clauses taken out of context.

I will cover the other clauses in the next post.


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