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  • The Uses and Abuses of the Commerce Clause

    There seems to be a fairly significant downside to a “living” Constitution: you can’t keep it from growing uncontrollably!  In the latest Constitutional Guidance for Lawmakers essay, David Forte outlines the staggering expansion in the reach of the Commerce Clause under the Progressives, from “The trafficking and trading of economic commodities” to “Any human activity or other phenomenon that has any ultimate impact on activities in more states than one.”

    Under the latter interpretation, the Commerce Clause has been invoked to validate most of the vast regulatory expansion of the national government since the New Deal.  It is the responsibility of the 112th Congress, however, to restore the original intent of the Constitution – including the proper limitations of the Commerce Clause.

    Posted in First Principles [slideshow_deploy]

    9 Responses to The Uses and Abuses of the Commerce Clause

    1. West Texan says:

      The founders were well aware of the commence clause's potential for abuse by power grabbing elitists. Enter the tenth amendment's guarantee as best defined by James Madison's commentary in federalist # 45. Sadly Mr. Madison had far more faith in the constitution's ability to limit government's tyrannous overreach than was warranted.

    2. Bobbie says:

      This is what happens when the people expect trust in those that lead this country. One look away, and it's gone!

      Thank goodness for the 112th. I will forever keep in my heart the words of Mr. Boehner. "Welcome to the people's house! Welcome to the 112th congress!"

      Mr. Boehner and the like minded of the 112th, your strength is telling, your dignity is character. Thank you for stepping in to stop this government indecency and restore the principles and values of America and her people.

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    5. the allist, everywhe says:

      The real problem is that America keeps churning out these moral-less people.

    6. Al from Fl says:

      The 112th congress has a tough job – to bring sanity and fiscal responsibility back to our Nation against a backdrop of dems who do not want to do so. Pres Obama will start sounding like he's moving to the right but don't look for any real change. Maybe the republicans can take each of his disengenous right sounding remarks and present him with a bill to carry out his promises. His latest move with Immwaldt (spelling?) CEO of GE, don't be fooled. This guy has been in bed with the Obama admin from the start.

    7. South Texan says:

      Not just churning them out, but also electing them? It's not the politicians, it's those that elect or re-elect them every year. The older I get the more I understand some of the basis of the early election laws. That is, if you do not own land, then you do not have the right to vote. A land owner would be highly unlikely to vote his ownership rights away. Limited government would be in his best interests.

    8. Rickard F. Pfizenmay says:

      It is disappointing that this piece fails to consider the limits which the Tenth Amemdment and the fundamental architecture of the Constitution place upon Congress' enumerated powers, including the commerce power.

      Despite court opinions to the contrary, total federal power is neither mandated nor contemplated by the Commerce Clause. Quite simply, the commerce power is limited by the constitutionally established sovereignty and integrity of the states.

      Forty-three (yes 43) years ago I wrote a law review note on a case (Maryland v. Wirtz) involving Congress' use of the Commerce Clause to regulate state activities. If the courts had adopted the analysis suggested in the article, the federal government's use of the Commerce Clause to implement social policy would not have reached the current critical stage where our very principles of federalism are in danger. At its core, the article argues that the commerce power, like the taxing power, is inherently limited so that it cannot be used to destroy state sovereignty. The article contains an extensive review of Commerce Clause cases up to that time and I would direct your attention to it. The article may be found at 66 U. Mich. Law Review 750 (1968).

    9. John, Rhode Island says:

      As much hope as I have in the 112th, I have equal if not more skepticism. I have a feeling the incumbent GOP'ers will not make this easy. We already had the DoD put forth a $78B budget cut and McKeon pushed back. This is going to be a long, drawn out battle, and the Dems are salivating at the thought of infighting in the Republican Party.

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