Federalist Paper #45 Revisited, The Commerce Clause DiscussedBy Wesley Riddle,
President, Central Texas Tea Party
Mr. Riddle has found himself at odds with establishment Republicans in Bell County. - The Legendary
Reclaiming the Constitution (Part 2)
Ted Cruz and Mario Loyola are distinguished scholars, who make the argument that the Founders’ careful, intentional constraints on the power of the federal government have all but vanished from the Constitution. A reinterpretation of the Commerce Clause is a notable example, such that, the American people are vulnerable to the onset of tyranny owing to a willful neglect of the instrument of our governance. The original framework of federalism has grown fragile, and in some ways substantially collapsed.
After the Constitutional Convention in Philadelphia in 1787, the Framers returned to their homes to engage in debates centered on the state ratification conventions that would decide the fate of the proposed Constitution. Three prominent Federalists—John Jay, Alexander Hamilton, and the proposed Constitution’s principal author, James Madison—published a series of essays in defense of the proposed Union, which came to be known as The Federalist Papers. Motivated by a deep concern for internal order and public safety, the Federalists argued that the proposed Constitution would pose no danger to individual liberty or to self-government in the States.
As James Madison wrote in Federalist No. 45, “the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty,” chiefly through the specific enumeration of limited powers for the federal government. Furthermore, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” For this reason, and a host of others that Federalist No. 45 was meant to catalogue, “[t]he State government will have the advantage [over] the Federal government.”
Hence the Federalists—advocates of a strong national government—expected that the States would retain more than enough power and scope to enforce the constitutional limitations on the federal government. This conception lasted well into the 19th century. In 1824, the Supreme Court held in the famous case of Gibbons v. Ogden that navigation and commerce across state lines fall within the federal government’s power to regulate commerce “among the several States, with foreign nations, and with the Indian tribes.” Gibbons stands for the principle that “the sovereignty of Congress, though limited to specific objects, is plenary as to those objects.” But Chief Justice John Marshall shared James Madison’s vision of the federal system: their view of a federal government of plenary authority within its enumerated powers was predicated entirely on their foundational assumption that those powers would be few and limited, and that States would remain the major presumptive agents of regulation and self-government.
If Congress was supposed to be able to regulate all commerce, there was no reason for the Constitution’s drafters to qualify the word “commerce” with the phrase “among the several States” in the first instance. The Court observed: “The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect the States generally; but not to those which are completely within a particular state….” In Gibbons the Supreme Court observed that “inspection laws, quarantine laws, health laws of every description, as well as law for regulating the internal commerce of a State” were but a few examples “of that immense mass of legislation” not surrendered to the federal government. It was only because they were so sure of the stringent limitations on the scope of federal power, and the preeminence of States with respect to most areas of legislation, that Marshall, and the Federalists generally, felt so confident asserting the supremacy of federal law within its domain.
In Virginia’s ratification debates, Patrick Henry, a leader of the anti-Federalist movement, had railed against the proposed Constitution: “To all common purposes of Legislation it is a great consolidation of Government.” The Federalists agreed that a general consolidation of power would be dangerous and potentially tyrannical. But they saw little risk that would happen, given the power of the States and the “advantages” Madison thought they would have over the federal government. For most of the early history of the Republic, the Federalists proved right—the States were able to frustrate the concentration of power in federal hands. During the rest of the 19th century, the commerce power was relied on not to justify the exercise of federal power, but rather to strike down state laws that discriminated against interstate commerce. The idea was that States were “preempted” from regulating within areas of exclusive federal regulatory power, such as interstate commerce. Otherwise, states remained sovereign in their respective substantial orbits.
Indeed at the dawning of the 20th century, the Supreme Court was still a major obstacle to federal overreach. This changed with the ambitious legislative initiatives of the Progressive Era and the New Deal, which President Franklin Roosevelt then bolstered at the start of his second term in 1937 with a threat to increase the size of the court by adding pro-New Deal justices. Intimidated, the Supreme Court acquiesced to New Deal legislation and began to steadily demolish all meaningful limits on the federal government’s power to regulate commerce.
The doctrine that anything with a “direct effect” on interstate commerce could be regulated under the federal commerce power was replaced by a rule allowing regulation of anything with a “substantial effect” on commerce (even if indirect). After that came the doctrine that anything which, if “aggregated” across the Nation, had a “substantial effect” on interstate commerce, was properly within the federal commerce power. The post-New Deal Supreme Court all but erased the limits on the Commerce Clause. The fear of the Anti-Federalists now appears justified: If the power to regulate virtually all human activity is granted to the federal government in the simple phrase “commerce among the several States,” what was left for the States or for the people? Small wonder that the federal government has been expanding relentlessly, growing from a 19th century average of 4 percent of GDP to a peacetime peak of 27 percent in 2010.
_____________________
Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party. Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010). Email: Wes@WesRiddle.com.
Reclaiming the Constitution (Part 2)
Ted Cruz and Mario Loyola are distinguished scholars, who make the argument that the Founders’ careful, intentional constraints on the power of the federal government have all but vanished from the Constitution. A reinterpretation of the Commerce Clause is a notable example, such that, the American people are vulnerable to the onset of tyranny owing to a willful neglect of the instrument of our governance. The original framework of federalism has grown fragile, and in some ways substantially collapsed.
After the Constitutional Convention in Philadelphia in 1787, the Framers returned to their homes to engage in debates centered on the state ratification conventions that would decide the fate of the proposed Constitution. Three prominent Federalists—John Jay, Alexander Hamilton, and the proposed Constitution’s principal author, James Madison—published a series of essays in defense of the proposed Union, which came to be known as The Federalist Papers. Motivated by a deep concern for internal order and public safety, the Federalists argued that the proposed Constitution would pose no danger to individual liberty or to self-government in the States.
As James Madison wrote in Federalist No. 45, “the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty,” chiefly through the specific enumeration of limited powers for the federal government. Furthermore, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” For this reason, and a host of others that Federalist No. 45 was meant to catalogue, “[t]he State government will have the advantage [over] the Federal government.”
Hence the Federalists—advocates of a strong national government—expected that the States would retain more than enough power and scope to enforce the constitutional limitations on the federal government. This conception lasted well into the 19th century. In 1824, the Supreme Court held in the famous case of Gibbons v. Ogden that navigation and commerce across state lines fall within the federal government’s power to regulate commerce “among the several States, with foreign nations, and with the Indian tribes.” Gibbons stands for the principle that “the sovereignty of Congress, though limited to specific objects, is plenary as to those objects.” But Chief Justice John Marshall shared James Madison’s vision of the federal system: their view of a federal government of plenary authority within its enumerated powers was predicated entirely on their foundational assumption that those powers would be few and limited, and that States would remain the major presumptive agents of regulation and self-government.
If Congress was supposed to be able to regulate all commerce, there was no reason for the Constitution’s drafters to qualify the word “commerce” with the phrase “among the several States” in the first instance. The Court observed: “The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect the States generally; but not to those which are completely within a particular state….” In Gibbons the Supreme Court observed that “inspection laws, quarantine laws, health laws of every description, as well as law for regulating the internal commerce of a State” were but a few examples “of that immense mass of legislation” not surrendered to the federal government. It was only because they were so sure of the stringent limitations on the scope of federal power, and the preeminence of States with respect to most areas of legislation, that Marshall, and the Federalists generally, felt so confident asserting the supremacy of federal law within its domain.
In Virginia’s ratification debates, Patrick Henry, a leader of the anti-Federalist movement, had railed against the proposed Constitution: “To all common purposes of Legislation it is a great consolidation of Government.” The Federalists agreed that a general consolidation of power would be dangerous and potentially tyrannical. But they saw little risk that would happen, given the power of the States and the “advantages” Madison thought they would have over the federal government. For most of the early history of the Republic, the Federalists proved right—the States were able to frustrate the concentration of power in federal hands. During the rest of the 19th century, the commerce power was relied on not to justify the exercise of federal power, but rather to strike down state laws that discriminated against interstate commerce. The idea was that States were “preempted” from regulating within areas of exclusive federal regulatory power, such as interstate commerce. Otherwise, states remained sovereign in their respective substantial orbits.
Indeed at the dawning of the 20th century, the Supreme Court was still a major obstacle to federal overreach. This changed with the ambitious legislative initiatives of the Progressive Era and the New Deal, which President Franklin Roosevelt then bolstered at the start of his second term in 1937 with a threat to increase the size of the court by adding pro-New Deal justices. Intimidated, the Supreme Court acquiesced to New Deal legislation and began to steadily demolish all meaningful limits on the federal government’s power to regulate commerce.
The doctrine that anything with a “direct effect” on interstate commerce could be regulated under the federal commerce power was replaced by a rule allowing regulation of anything with a “substantial effect” on commerce (even if indirect). After that came the doctrine that anything which, if “aggregated” across the Nation, had a “substantial effect” on interstate commerce, was properly within the federal commerce power. The post-New Deal Supreme Court all but erased the limits on the Commerce Clause. The fear of the Anti-Federalists now appears justified: If the power to regulate virtually all human activity is granted to the federal government in the simple phrase “commerce among the several States,” what was left for the States or for the people? Small wonder that the federal government has been expanding relentlessly, growing from a 19th century average of 4 percent of GDP to a peacetime peak of 27 percent in 2010.
_____________________
Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party. Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010). Email: Wes@WesRiddle.com.
I heard Wes speak in Belton. When he said he did not want to be the leader of the Central Texas Tea Party forever, I thought "I have heard this before." Then he not only went into detail about how he was going to accomplish the change in leadership but also he explained why the transition was necessary.
ReplyDeleteFinally someone who doesn't give it lip service.