“In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.” — James Madison, On Property, March 29, 1792
The hottest topic in America right now — as I write this, the Supreme Court is about to begin hearing three days of oral arguments — is the constitutionality of several aspects of the legislation called the Patient Protection and Affordable Care Act, better-known as "ObamaCare." Much of what has been written about this case is predicated upon the idea that it is "settled law" that Congress has "broad powers" to regulate interstate commerce. Supporters of ObamaCare jump from that premise to the conclusion that the Court must uphold the law, while opponents argue that although Congress has that "broad power," ObamaCare goes too far and exceeds the authority granted to Congress.
What must be challenged is the premise that the Constitution actually does grant Congress "broad power" over interstate commerce. The fact is that the language of the Constitution itself does not confer such power. Anyone who reads the document in search of a clear statement — and the drafters were nothing if not clear, careful writers — that Congress or the executive branch is supposed to have any power at all to dictate to individuals and businesses how they must act when engaged in "interstate commerce" searches in vain.
Instead, the supposedly broad powers to dictate to Americans how they must act, even to the point of demanding that they purchase particular products, is entirely an artifact of constitutional law. That is to say, in a number of its rulings about the meaning of the Constitution, the Supreme Court has said that the federal government has those "broad powers." It is easy to show that those rulings were erroneous, creating a wide divergence between the Constitution's plan for a republic with a separation of powers between the federal government and the states, and the people with strict limits on the latter.
At the heart of the current dispute is "the Commerce Clause." Included in Article I, Section 8 under the enumerated powers specifically given to Congress, we find this language: "To regulate Commerce with Foreign nations, and among the several States..." Why was that inserted? James Madison later explained that "the Commerce Clause grew out of the abuse of power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the states, rather than as a power to be used for the positive purposes of the general government."
Madison wrote in Federalist Paper No. 42:
“The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”
Thus, the purpose of that clause was to remedy a problem that had arisen in the new nation — namely, that some states were impeding the flow of commerce with laws favoring producers within their borders. To keep commerce "regular" meant that Congress could enact laws to prevent that abuse of power by the states. It was never meant, as Madison wrote, as a grant of power for whatever future Congresses might want to do to control everything relating to people's commercial affairs.
For a long time, that was how the Supreme Court understood the Commerce Clause. As late as 1935, the Court refused to accede to the "progressive" notion that the clause meant that Congress could intervene in business operations. In Schechter Poultry Corporation vs. The United States, the Court declared unconstitutional the National Industrial Recovery Act on the grounds that Congress had no authority to dictate to businesses how they must operate, or to delegate such decisions to unelected bureaucracies.
Late in 1936, however, President Roosevelt, angered at a Court that had struck down many of his progressive and statist plans for controlling the nation's economy, issued his infamous threat to pack the Supreme Court. That plan met with a great deal of opposition within his own party, but it apparently worked on two members of the Court: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. When it came to deciding the test case involving FDR's extraordinarily authoritarian National Labor Relations Act in 1937 (more commonly known as the Wagner Act after its author), they switched from supporting the old, correct understanding of the Commerce Clause to supporting the "progressive interpretation" that the clause gave Congress power to enact any law that would somehow "affect" interstate commerce. The funny thing about that decision, the Jones & Laughlin Steel case, is that the majority never bothered to mention the Court's previous Commerce Clause decisions. It was as if Schechter disappeared into a black hole.
The Court continued along that same line, allowing Congress to do whatever it wanted by calling it "regulation of interstate commerce" until reaching the utterly absurd case Wickard v. Filburn in 1942. Under the Agricultural Adjustment Act, a farmer in Ohio was fined for having grown more wheat than federal regulators and masterminds permitted him to. He argued that the law was unconstitutional (at least as applied to him) because all of the wheat had been consumed on his own property. None had been sold at all, so there was no commerce, much less "interstate commerce." But, eager to uphold the "progressive" ideal of unlimited federal control over every aspect of the economy, the Court fashioned a remarkable justification. Since the farmer might have purchased some wheat in interstate commerce if he had not illegally grown his own, his conduct therefore could have "affected" the interstate market for wheat, and therefore his action was subject to federal punishment.
“The man who challenged the act's wheat quotas was Roscoe C. Filburn, a small Ohio farmer. Filburn maintained a herd of dairy cattle, raised poultry, and sold milk, poultry, and eggs in the open market. He planted a small acreage of winter wheat that he fed to his chickens and cattle, ground into flour for his family's consumption, and saved for the following year's seed. Filburn did not sell a single bushel of wheat in the open market. In 1941, Filburn sowed twelve acres of wheat more than he was permitted by Second Agricultural Adjustment Act's regulations. This unauthorized planting yielded 239 bushels of wheat, on which the federal government imposed a penalty of 49 cents a bushel. Filburn contested the government's assessment, arguing that the federal power to regulate commerce did not extend to the production and consumption of wheat that was never marketed
When Filburn's challenge reached the Supreme Court in 1942, the tribunal had been dramatically refashioned by the appointments of President Roosevelt. The only justice whom Roosevelt had no hand in appointing to the Court that reviewed Filburn's case was Owen Roberts, the individual who had undergone the famous “switch in time that saved nine” in 1937. So, by 1942 the Supreme Court was very much the Roosevelt Court.”
Nowhere in the Constitution is there any express power to control agricultural prices. The justices merely assumed that Congress was supposed to have such authority, then leaped from there to the constitutionality of punishing an individual for having used his own labor and property in a peaceful manner. (See James Madison on Property)
It was precisely that kind of high-handed disrespect for individual liberty that catalyzed the American Revolution, but according to the Supreme Court, penalizing farmers for growing more of a crop than some federal bureaucrats decided they were permitted to do was perfectly in keeping with the Constitution. Within just five years, the United States had gone from strict limits on the power of the federal government to virtually no limits (a point made in the dissent to Jones & Laughlin) — not because the Constitution had changed, but because "constitutional law" had changed. It was just as if the Supreme Court had amended the Constitution to radically alter its meaning.
The backstory to this history is that American "progressives" had long yearned to dump America's tradition of individual liberty and limited government in favor of extensive, "scientific" control by the elite — i.e., masterminds like themselves who would take into consideration "the public good." Inspired by utopian visions of a far more rational and equal society, such as Moore’s Utopia and Hobbs’ Leviathan, the progressives wanted a centrally planned nation in which obedience to authority would be the rule and freedom the exception. The trouble was that the Constitution was written to put strict limits on government power, especially when it comes to the federal government.
Rather than taking dead aim at federalism and the limits on government power, which most Americans favored, the progressives went about subverting the Constitution by getting their allies appointed to the bench, especially in the Supreme Court. Those were the jurists who thought that the Constitution means whatever a majority of the Court says it means, and they rarely missed an opportunity to decide a case in a way that expanded the scope and power of the federal government. Much of what we call "constitutional law" today is the accumulation of decisions that departed farther and farther from the language of the Constitution in favor of the progressive theory that increased government control over almost every aspect of society is good. After all it was Obama himself who said the Constitution was a document of negative values and said what the government could not do rather than what the government could do for the good of the people.
The alleged constitutionality of ObamaCare is based upon a series of missteps that began with Jones & Laughlin Steel. If ObamaCare is held to be constitutional, it will serve as another step toward...what? It is impossible to know where the "progressives" will push their agenda of increasing federal domination after they take over the market for medical care. Will the government mandate what car you will buy? After all don’t we travel the interstate highways for pleasure and commerce? Perhaps they can dictate what you eat as it is good for your health. Don’t food stuffs travel across state and international boundaries?
We the people of the United States are suffering from the Stockholm Syndrome. For the past 80 years our liberty, the inalienable rights stated in the Declaration of Independence and protected by the Constitution or 1787, has been under attack by the masterminds and statists of all three branches of our government. We, like the hostages referred to in the phycology of the Stockholm Syndrome have become so beaten down we are now looking to the Supreme Court for one small bit of mercy so we may continue our lives in the bondage of the utopian world they have bound us to.
There can be no doubt that once it becomes "settled law" and that the vast increase in coercion under ObamaCare is constitutionally valid, we will see other offensives that go still farther.