The Perverse Use of the Commerce Clause

[“Son of Liberty” wrote: I found this article on the website “The Moral Liberal” which is a conservative website dedicated to Judeo-Christian ethics of the Founders.]
“Of particular note, in our day and age, is Madison’s point of the state’s having a check against potential abuse through the Senate, which would be elected by the state legislatures under the proposed Constitution, making part of the Senate’s very purpose a check in favor of state rights and against the dangers of an oppressive majority (pure democracy), an oppressive concentration of power exercised by large population states, and against an oppressive concentration of national power in general. Interestingly enough, it was also regarded as a vital check against socialistic wealth redistribution schemes.

But since the 17th Amendment passed during President Woodrow Wilson’s day, this vital check has been obliterated by turning the election of the Senate, as was already the method in the House, over to a popular election among the people. A repeal of that Amendment, therefore, would be one of the most vital reforms that could possibly occur if we are to once again restore the proper balance of power between the national and state governments under our federal system, and to check and reverse the national tendency toward socialism.

Of equal importance on these points would be the immediate refusal of all state, county, and city governments to accept ANY federal aid – aid which can only first be taken from the people of those states by direct and indirect means, and given back at the cost of those federal strings which inevitably follow federal grants, minus an administrative surcharge, and minus this too: a compliance cost tag imposed upon private enterprise. Economists, such as Nobel Prize winner Milton Friedman have estimated twenty dollars in compliance costs for every one dollar of federal money budgeted to agencies possessed of regulatory power over commerce. A high price for a “free” ride.

And again, of vital necessity in reversing the perverse use of the Commerce Clause in our day, Congress ought to utilize that check found in the Constitution which permits them to limit the jurisdiction of the federal courts. Such a change, however, would make all the more sense, if and when the state, counties, cities (and other private entities and individuals) get off the federal dole. If the Courts were right in 1961 when they reasoned that that which the federal government subsidizes it has the right to control, then the reverse would seem right as well, that which the federal government does not subsidize it has no right to control. Thus reigning in the Commerce Clause to its original intent begins with us, as individuals, as businesses and corporations, as school districts and other public works, as cities, counties, wards, districts, and states to get off of and stay off of the federal dole.

So far as abuses that have emerged since the original Constitution was passed into law in regards to the regulation of commerce, Fast Track Authority for the President, which unconstitutionally did away with the 2/3rds vote requirement in the Senate for foreign treaties (by simply renaming them “trade arrangements”) would be the first and most important adjustment, as would be the repeal of NAFTA, the WTO, and like international treaties that have delegated much of the constitutional power of Congress over our commerce to unelected foreign bureaucrats, many of whom are devoted to the interests of their own countries, and many others, to the overthrow of America’s free way of life and her national sovereignty.”

Source: Steve Farrell’s introductory notes to Madison’s Notes on the Federal Convention of 1787, August 29, 1787. Additional commentary in this post also by Steve Farrell, Editor In Chief, of The Moral Liberal.

Would you like a thorough education on “original intent”? The Moral Liberal recommends: Notes of Debates: In The Federal Convention of 1787, and The Debate on the Constitution : Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification : Part One, September 1787-February 1788 (Library of America), as well as The Debate on the Constitution : Federalist and Antifederalist Speeches, Articles and Letters During the Struggle over Ratification, Part Two: January to August 1788 (Library of America)
Post Published: 04 April 2012
Author: Steve Farrell
Under the Bivens theory, when no specific remedy exists for the violation of the rights at issue, the existence of a remedy for the violation is implied from the importance of the right violated.


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