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.