"Mistrust those in whom the urge to punish is strong." Friedrich Nietzche

"Any and all non-violent, non-coercive, non-larcenous, consensual adult behavior that does not physically harm other people or their property or directly and immediately endangers same, that does not disturb the peace or create a public nuisance, and that is done in private, especially on private property, is the inalienable right of all adults. In a truly free and liberty-loving society, ruled by a secular government, no laws should be passed to prohibit such behavior. Any laws now existing that are contrary to the above definition of inalienable rights are violations of the rights of adults and should be made null and void." D. M. Mitchell (from The Myth of Inalienable Rights, at: http://dowehaverights.blogspot.com/)

Sunday, December 19, 2010

Personal Liberty and the Commerce Clause

I can prove that the U.S. government has the legitimate Constitutional power to regulate the lives of all the people living in the United States. That is, that we are all now subjects of the federal government. Seems rather an absurd statement doesn’t it?

It all comes down to laws that Congress passes, using the power of the Commerce Clause of the U.S. Constitution, and how the Supreme Court interprets that power.

Article I, Section 8, Clause 3 of the Constitution states, in pertinent part: “The Congress shall have Power To . . . regulate Commerce . . . among the several States . . . .”

Way back in 1870, in a case entitled U.S. v. DeWitt, the Supreme Court ruled that a defendant could not be prosecuted—under a federal law that prohibited the selling of certain types of lamp oils due to their high flammability—because he had not been involved in commerce outside of the State of Michigan.

[The] express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested.

In other words, if there was no other constitutionally enumerated power “expressly granted or vested” to Congress, then Congress couldn’t pass laws regulating commerce exclusively within the boundaries of any of the States of the United States.

The Court went on to explain that the federal law being discussed:

As a police regulation, relating exclusively to the internal trade of the States it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as, for example, in the District of Columbia. Within state limits, it can have no constitutional operation. This has been so frequently declared by this court . . . that we think it unnecessary to enter again upon the discussion.”

U.S. v. DeWitt, 76 U.S. (9 Wall.) 41 (1870).

So, in 1870, the limits of the federal government relating to interstate commerce was obvious. If a person did not buy or sell across state lines the federal government had no legitimate power to regulate said person or said person’s business.

Now we fast forward to 1964 and look at two cases also decided by the U.S. Supreme Court and see how things had changed and changed dramatically.

[Note: both of these cases pertain to racial segregation. Ending racial segregation is a good thing, but the decisions of the Court reached far beyond that single issue.]

The Court in Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964), held that Congress could regulate both interstate commerce and intrastate activities that affected commerce as part of its “national police power” to legislate against moral wrongs. (Although, I’m not sure what part of the Constitution enumerates a police power to the federal government allowing Congress to legislate against moral wrongs.)

So now we have the Court saying that even non-interstate commerce could be regulated by the federal government if intrastate activities affected interstate commerce. What affects interstate commerce today? Think about it.

Then, in a companion case, Katzenbach v. McClung, 379 U.S. 294 (1964), the Court held that the federal government could regulate small businesses that purchased all of their materials and supplies locally because some of the local suppliers had purchased material from across state lines. As long as there was a reasonable showing that a local business, doing business with other local businesses made substantial impact on interstate commerce, then, fine, the federal government could regulate it. (How much local commerce does it take to make a substantial impact on interstate commerce?)

To govern means to control. To regulate means to control. The U.S. Supreme Court has decided that the federal government gets to control anything that affects interstate commerce, especially if said affect is substantial.

Who among us hasn’t crossed a state line. If you didn’t walk across then you drove, or flew, or took a bus. The fact that you had to buy gasoline or pay for a ticket would be commerce and probably substantial in its affect. How, in today’s economy, can you not buy things that have come across states lines: cars, gasoline, building materials, computers, clothing, food? The list is endless. Therefore, you, a private citizen, have had and is continuing to have a substantial affect upon interstate commerce.

Does it even matter if you don’t own a business? I think not. I believe that the government has in place enough pro-government court decisions that, should it ever want to, Congress could pass laws to directly control (regulate) each and every one of us just because, by our very existence in this modern society, we have all had a substantial affect on interstate commerce.

As the late Libertarian writer, Murray Rothbard said: It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of the government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government.

And so, little by little, court decision by court decision, the federal government takes more power from the states and from the people. It creates more regulations and we, the people, lose more of our personal liberty. Does it matter? It does to me. I like less government control and more personal liberty. How about you?