Posted by Philip on 05/05/09 9:10 PM Last updated 05/05/09 9:14 PM   [Newer: D.C. Police Barricades Challenged in D.C. Appeals Court] [Older: 10 New Constitutional Amendments: The Bill of Federalism]

Sadly, some people may be surprised to learn that Congress's power is limited to only those powers enumerated in the Constitution. I say "sadly" because I'm afraid far too many people ignorantly believe Congress can just pass whatever laws it desires. This is not the case. To remove any doubt read the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

One power explicitly granted to Congress is the so-called "Interstate Commerce Clause" found in Art. I, Sec. 8, Cl. 3:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Sounds harmless right? Unfortunately, it has been so perverted as to allow Congress to regulate nearly everything. From the New Deal until 1995 not a single law was struck down as violating the Commerce Clause despite the federal government using it as a rationale for everything from FDR's New Deal policies to countless federal agencies. In 1995, U.S. v. Morrison (the case that ended the drought), Justice Souter wrote in dissent that intrastate sexual assault could be regulated as interstate commerce! If that's interstate commerce then what isn't!?

More importantly, what was the Commerce Clause intended to do? Father of the Constitution, James Madison wrote the following:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." - Letter to Cabell, February 13, 1829.

Far from granting Congress the power to create the massive regulatory, central economic planning, nearly limitless government in which we live today... the Commerce Clause was intended to be a restriction on States, not a positive grant of power to Congress at all! Why then is it under "Powers of Congress"? Simple, the federal government has the power to resolve trade disputes among the states and essentially provide for free trade among the states. Perhaps no clause in the Constitution has been so perverted as the Interstate Commerce Clause.

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