VIII: Commerce Clause Abused to grow the Federal Government

Federalist 42 found in “The Federalist Papers” is an essay written by James Madison, the principal architect of the Constitution and its “Commerce Clause”, wherein he defines the intent and purpose of the clause. Despite a clear and exacting definition of the clause from Mr. Madison, progressive jurists have provided a wholly different meaning – a meaning that unconstitutionally radically empowers the central government. This new, clearly erroneous, definition has allowed for the usurping of the delicate vertical balance between the states and the federal government, now making the states subordinate. Didn’t the states create the federal government to make the union of states stronger? Didn’t they make every effort to make the union of states stronger, not a strong federal government? They would not have created the federal government if they wanted to be subservient, and almost irrelevant, as they are today. How and why did we let this happen?

The Supreme Court of the United States has done, over time, a grave injustice to the framers and the citizens of this country; and to that delicate balance by misrepresenting, either intentionally or unintentionally, just what the “Commerce Clause” means. The founders and especially James Madison were abundantly clear on what it meant and why the “Commerce Clause” existed as one of the eighteen enumerated powers granted to the federal government. Writings of James Madison actually define the Commerce Clause, thus there can be and should be no confusion on what the Commerce Clause means.

Under the predecessor to the Constitution, the Articles of Confederation, states were charging heavy import and export duties on sister states for goods transported from and through respective states. This was causing enormous disunity between poor and rich states; indebted and un-indebted states. Unregulated commerce was threatening to break apart this fragile new union of States and the founders knew this.

When “To regulate Commerce with foreign Nations and among the several States, and with the Indian tribes;” was written into the Constitution, the clear intent and reason for it was to simply insure that one state took no advantage over another state in transportation of goods and to insure a common treatment of foreign Nations and Indian Tribes.

James Madison talks to the classes of the enumerated powers – commerce between states being in the third class. (The Federalist Papers – Federalist 42). In 42 we find:

“The powers included in the third class are those which provide for the harmony and proper intercourse among the states.”

“…I (Madison) shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States…
A very material object of this power was the relief of the States which import and export through other States from the improper contribution levied on them by the latter.
…The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion…”

The enumerated “Commerce Clause” as it pertains to States was simply intended to insure that no one state took advantage of another. This Clause had nothing to do with the federal government deciding that it could derive almost unlimited and unchecked power from an incredulous series of “out of nowhere” interpretations of the “Commerce Clause” by prior members of Supreme Court. The founders and the states did not intend the federal government to control all goods and services in this country – why would they?

Further, it was abundantly clear about the intention of the states and the people to give the federal government as little power as possible to meet the needs of the union. The Supreme Court in prior decisions has, without due process (the amendment process), radically and unconstitutionally changed the fabric of that delicate balance between enough central governance to keep the union strong and the necessary autonomy and desire of the states to manage their own affairs – as was agreed to in the original compact, and it has put the citizens and the future of this nation at risk in the process. To put it simply: the Court has allowed and assisted the federal government to be in breach of contract with the union of states far too long.

Prior Justices who gave unusual, broad reaching, and extended power to the federal government by ignoring the clear and well defined meaning of the “Commerce Clause” again changed the highest law in the land – the Constitution – without use of the amendment process. They committed the ultimate wrong of a jurist – they made law, by altering the highest law in the land, the Constitution.


XII: Can We Restore Our Constitution

Can we retake that delicate balance and reestablish the limited federal government intended by the founders? Yes, we can reset this country, but it will not be easy.

Can we do it at the national ballot box? Not likely, as the media is one of the primary causes of our demise. If we can get the message through, which is of little chance, the message will be twisted by the media. Today lawn chair carrying, very orderly tea party members are called racist. Images have been doctored to show “red necks” carrying guns at the tea party rallies. It was also widely reported, without any evidence, that racial epitaphs were hurled at members of Congress. Remember, they will say or do anything to achieve the goal of a broken country crying out for socialist rule.  Yelling racism is their primary tool when they do not have an argument.

We would have to elect enough members of both houses who are in agreement with resetting our Constitution, sufficiently so, that they would support and vote for the necessary Constitutional fixes as amendments and then pass these amendments on to the states for ratification.  Remember Republicans are not conservative, but there are conservative Republicans. This means two thirds of each house must be on board. Considering the media distortion of candidates and the progressives masquerading as conservatives, we have little chance of electing the necessary two thirds super majorities in each House who support the fixes – reducing the power of the federal government. Also consider that we only elect one third of the Senate every two years. This makes it very hard to push a continued assault on the progressives, exposing them for up to six years to achieve the numbers needed.  Do you really believe that the representatives in the federal government will seek to shrink their tool of power?

Currently, it would be a miracle if we elected all non-progressives to Congress. Despite this miracle, we might still not repeal the new powers afforded the central government and its Executive Branch. As long as a progressive socialist holds the White House and with only one third of the Senate up for reelection at any time, a two-thirds override of a Presidential veto is highly unlikely.

Can we do it in the courts? Again, not likely, as the courts remain progressively corrupt and federal judges are appointed for life. An example of the judiciary not respecting states, among a plethora of decisions by federal judges ordering states to heed the ruling of their court, is the recent case of a federal judge combining suits against Arizona regarding its S.B. 1070 illegal immigration law. The judge combined civil suits with an action for an injunction by the Executive Branch’s department of justice. Not only was this the wrong venue, the judge had no jurisdiction to hear the federal government’s case, at the minimum, or any of the suits. Instead of jurisprudence, this is “jurischutzpah”.

Article III Section 2 of the Constitution states

“…In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be Party, the supreme Court shall have original jurisdiction.”

Wherein the Supreme Court is an appellate court normally, when it comes to the states, it is the only Court. This case and numerous others currently taking place are examples of the states being relegated to second tier status by the central government, with the complicity of the judiciary, making the states irrelevant.

Can we do it with a traditional constitutional amendment? Not likely, as the Senate and the House are now progressive or near progressive and as stated earlier you will never see a two thirds majority with any interest in comprehensively amending the Constitution to broadly reel in the federal government and limit the powers of Senators and Congressman to the extent needed.

However; there may be an outside chance that the commerce clause can be revised and defined to its original intent with a constitutional amendment. The argument being that the abuse of the commerce clause is one of two primary causes of the explosive growth of the federal government since the early twentieth century – the seventeenth amendment is the other. Redefinition of the commerce clause may be the impetus needed to permanently reverse the federal government’s spending and growth. With a large Republican majority in the House and a slight majority in the Senate, conservatives and moderates might just convince remaining Senate Democrats under electoral pressure to sign on to such a constitutional amendment, where-in two thirds of each house would be needed to move the amendment on to the states for ratification. Do we have other alternatives? Yes, we do have other better possible alternatives given to us by the founders for the expressed purpose of reining a runaway federal government..

XIII: Convention For Proposing Amendments

The first and probably the surest alternative can be found in Article V of our Constitution. Article V allows the States, as well as Congress, to initiate change to our Constitution with Amendments.

Article V states:
“The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…

James Madison has in the notes of the “Debates in the Convention of 1787” – he kept the notes – that the method of Congress to amend the Constitution was added after much debate, as the original method entered into the draft of the Constitution was the States method.

This is the note found in my copy of the “Debate Notes” added to the transcribed notes of the debate – it is unattributable.

This Preface has been printed from Madison’s original manuscript in the Department of State. There is a transcript of the Preface in an unknown hand in the Library of Congress which was sent to the printer and from which Henry D. Gilpin printed The Papers of James Madison, 3 volumes (1840). The text of the Preface as here printed has been read with the printer’s copy thereof and important differences noted.

If you research these notes by Mr. Madison, you will see that today’s handling, interpretation, and abuse of the Constitution is not in keeping with what was intended. Try the Yale Law School repository for the Debate Notes.

They fear this occurring, as it bypasses the federal government and Congress’ input. We will be told by progressives, that if we ever did this; and we have never done this; that we would create chaos and completely re-write the Constitution, even though the progressives want the current Constitution gone. Even conservative groups fear this “proposal” convention for the irrational fear that we would lose everything at a convention of chaos. This is far from the truth.

Congress, the President of the Senate and the Speaker of the House, after receiving a constitutionally limiting petitions from two-thirds of the State Legislatures to call a “Convention to Propose Amendments to the Constitution”, can propose whether ratification of Amendments from this convention occurs at the convention (likely not to happen, allowing those who propose amendments to ratify – Congress may very well require a separate convention for each state – added 12/27/2015) with three-fourths of the state delegations, or delegates as a whole, voting to ratify one or more Amendments, or by the traditional method of three-fourths of the State Legislatures ratifying one or more Amendments. Congress can propose either method; convention ratification or state legislature ratification, but it cannot interfere with the business of the convention.

Since the Constitution is silent on how ratification occurs at the convention other than to let Congress propose a method, the State Legislatures could appoint their delegates, and also stipulate whether their delegates vote as a block, with each state having one vote. As Congress will likely propose the ratification by State Legislatures method; ratification at the convention will probably never occur, unless the States force the issue in their petition.

Since no time frame is specified in the constitution for ratification, except what is codified in the U. S. Code, any amendment proposed by the States really should have its own sunset clause. If ratification by the thirty-eighth state does not take place by a specified date, the ratification process for that Amendment then fails. States, to provide added protection against a wholesale re-write of the Constitution, can instruct their delegation that a wholesale re-write may not be attempted and will not be ratified.

States can also place into the petition for such a convention a limiting provision. Petition the Congress to call, under Article V, a Convention to Propose Amendments and add that any amendment must be solely germane to providing the states with additional checks and balance over the federal government’s branches.  Remember this, that only thirteen states NOT ratifying is the best firewall against a runaway or chaotic convention.

Ratifying states will send their certified official notice of ratification to the Archivist of the United States at the National Archives and Records Administration, pursuant to U.S, Code 106b. Upon receiving such notices from three fourths of the states, the Archivist will cause the Amendment to be published. There is no precedent for just how this would proceed, since an Amendment has never been proposed and ratified by the States.

To be successful, the goal of this convention must focus on restoring the checks and balance by the States over the federal government as it was in late December 1791, which was after the first ten amendments were ratified – the Bill of Rights.

Thoughts on What To Pass:

Any proposed Amendment that would attempt to negate the seventeenth Amendment, would face serious opposition to ratification. Opposing forces to this repeal or negation would whip up public sentiment claiming the states are attempting to take away the public’s right to vote directly for their U. S Senators.  Perhaps an alternate to repeal of the seventeenth amendment nullification would generate much less public enthusiasm to stop the process. Rather, the delegates should concentrate on one or two proposed Amendments, which they should tightly define.

The focus of the States should be the now abused Commerce Clause, and more importantly the “constitutionalization” of state nullification.

A proposed and ratified “Checks and Balance Nullification Amendment” will allow the States to nullify laws and regulations passed by Congress, regulations of independent agencies created by Congress, regulations and Executive Orders issued by the Executive Branch regardless of what name is given to these, or any constitutionally related federal judicial decision, whether it is from inferior courts or the Supreme Court.

Nullification under such an amendment might be a two-step process. Each house of a state legislature would vote on a joint resolution to “nullify”. If sixty percent of the States pass a “for nullification” joint resolution, then the law, decision, or regulation is nullified. Nebraska, being a unicameral (having only one house) legislature would only need a resolution and not a joint resolution.

Enough about this author’s potential cures.  If you now understand that something must be done or are unsure and want to learn more about the issues, the solutions, and the support behind this effort you need to visit the CONVENTION OF STATES website.  It is filled with expert commentary.  You might also visit a Mark Levin commentary on Article V and the issue at hand.  Mark Levin is a renowned attorney, talk show host, and a constitutional scholar.

Read more about the ratification process at: