Nancy, Are You Serious?

Thursday, October 29, 2009

By Jake Towne
Published 10/29/09

Last week, the U.S. Speaker of the House, Nancy Pelosi, responding to a reporter's question of whether the Constitution gave Congress the authority to enact individual health insurance mandate, kept repeating, "Are you serious?"

Now, let's give Speaker Pelosi the benefit of the doubt and attribute her impolite reply to simple disbelief. In fact, from her point of view her authority is unchallenged per a September press release, and many others such as Politico's Erwin Chemerinsky and even the contemporary Supreme Court agree. From her press release, Pelosi states:

"The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."

The Speaker is certainly correct that federal Congress has certainly legislated on "many aspects of American life." In fact, there is a lot more at stake with the Commerce Clause than "just" our health care — the entire authority for economic central planning rests on this single clause. I strongly disagree with Pelosi that the Constitution allows Congress broad power in this respect. First, the exact language from my job description in Powers of Congress, Article I, Section 8, Clause 3:

"The Congress shall have Power... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Pelosi believes that she has the power to "regulate Commerce... among the several States" and I suggest that in blunt language she instead literally means to "control the economy... of the States." Pelosi and her ilk accomplish this by confusing the modern meanings with the legal meaning and contemporary context of the founders.

Regulation, in today's dictionaries, means "a governmental order having the force of law." However, this is not the historical definition. The founders believed "regulate" to literally mean 'to make more regular' or, per Black's Law Dictionary at the time, "a rule or order prescribed for management or government; a regulating principle; a precept." In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties. This is most clearly seen in Article 2 of the Kentucky Resolutions of 1798 written by Thomas Jefferson.

Next, although the Federalist Papers are not legal documents, they do serve as public demonstrations of the founders' intentions as they were part of a series of essays published to explain the Constitution to the public before its' ratification. James Madison in Federalist #42 wrote:

"The defect[s] of power in the existing Confederacy to regulate the commerce between its several members... [has] been clearly pointed out by experience... 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... it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade... The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls."

A modern example of "unregulated" Commerce by the founder's meaning would be manufacturing companies in the interior of India, which has 28 states. As goods move by rail or truck from interior states to a seaport in a coastal state, each state assesses its own tariff at its border which rightly leads to "animosities" and a "less convenient channel" for foreign trade. But what did the founders mean by 'Commerce'?

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