I am an American.
My family name ancestor came over with the Winthrop Fleet in the 1630s, close to 400 years ago. I’ve got many more very long ancestral lines from my dad and mom. Unfortunately, years later, at the Constitutional Convention in 1787, none of my family was there. But during the ratification process, I’m sure there were heated arguments about parts of this constitutional proposal by my family members of that generation. The following words are addressed to them because they should know what has been happening.
The Constitution is no longer the supreme law of the land. Actually, it hasn’t been the supreme law of the land since April 12, 1937. On that day, the 5-4 decision by the Supreme Court began the compounding of the commerce clause in the Constitution. The continuation of the compounding has been done by a process called stare decisis or “let the decision stand,” which has provided a guidance for later Supreme Court decisions on federal commerce laws. With the help of the Supreme Court, federal commerce laws not “made in Pursuance thereof” of the Constitution have become the supreme laws of the land.
I suppose you are wondering in what way the commerce clause in the Constitution changed in 1937. I won’t bore you with legal talk because I don’t know it. So I’ll try to keep it simple. The commerce clause originally allowed the federal government the power to regulate commerce between the states. I’ll paraphrase an example that was written by James Madison, using the pseudonym Publius, in what we call No. 42 of The Federalist Papers.
Let’s say Kentucky wanted to import some grain from Pennsylvania and the grain had to go through Virginia before reaching Kentucky. The federal government would ensure that Virginia wouldn’t inflate the price of the grain. The commerce clause also, as you know, allows the federal government the power to regulate commerce with foreign nations and with the Indians.
Then in 1937, without the country going through a constitutional amendment process, five justices elevated the power of the federal government. It went from having the power to regulate commerce between the states, to also having the power to regulate anything that remotely affects that interstate commerce.
It began allowing federal legislators to legislate just like state legislators. It also allowed unelected people in the federal government the power to add their own touch to this type of legislation. Recently, the federal government was trying to tell us whom a farmer could hire to do the farm work. They could claim the right to make a rule like this because interstate commerce is affected when a farmer purchased hog feed from the local store. The local store had purchased it from a distributor in town. The distributor had bought this feed from another city down the road, and it had been acquired from a neighboring state. Because that farmer’s cow milk will be sold in town with a 0 percent chance to be sold across state lines, interstate commerce is again affected. Would you have ratified this?
Because I have difficulty-spelling IQ, I’m stuck with a question that I don’t know how to answer. The commerce clause includes regulating commerce between the states, with foreign nations and with the Indians. No extra regulatory power was noted making any differences with the three. So how can the federal government control within a U.S state any activity that only has an effect on interstate commerce, but not control within a foreign nation any activity that only has an affect on their commerce with our country?
People today are talking about evolving on issues. As I wrote, back in your day the federal government could regulate commerce between the states. It was the same as they did with foreign countries and the Indians. Then in 1937, the federal government could also begin regulating anything, and I do mean anything, that affects commerce between the states.
Today, in 2012, the Supreme Court has heard arguments considering a federal law that mandates us to now produce commerce. How about that for evolving? Would your generation have ratified the Constitution with a mandate power claimed from the commerce clause?