Do conservatives understand the Constitution they say they love?
Good Morning C&L Readers. Thanks for stopping by.
Several states banded together and filed a lawsuit stating that healthcare reform was unconstitutional. They seem to be using a two-pronged argument: First, healthcare reform “infringes on state powers under the Constitution’s Bill of Rights.” Secondly, according to the Attorney General of Virginia, “Congress lacks the authority under its constitutional power to regulate interstate commerce and force people to buy insurance.” We’ve heard cries of, “where does it say in the Constitution that Congress has the power to force you to buy insurance?”
Well, let’s start from a position that I think we all can agree on — the Supreme Court is the final arbiter over what the Constitution says and doesn’t say. Whether we agree or disagree with the Supreme Court, they have the final say (Article 3, Section 2).
Let’s start off this legal journey to looking at Article I, Section 8 — “The Congress shall have the power… to regulate commerce with foreign Nations, and among the several States, and with Indian Tribes;” “Commerce” is defined in Merriam Webster’s Dictionary as “social intercourse: exchange of ideas, opinions or sentiment.” The secondary definition is the one that we are more familiar with — “…the exchange or buying and selling of commodities on a large scale involving transportation from place to place.”
We really weren’t a nation for long before this commerce clause was challenged. In 1816, Congress passed a law which opened the second Bank of the United States. Shortly after the bank opened, the state of Maryland passed a law which imposed taxes on that bank. James McCulloch was the cashier of the Baltimore branch. He refused to pay the tax. McCulloch versus Maryland was the resulting case. The Supreme Court, using the commerce clause, stated that Congress had the right and the power to incorporate a bank. Chief Justice John Marshall, who fought in the Revolutionary war, served in Virginia’s House of Delegates and was appointed to the court by President John Adams, argued that Congress possessed unenumerated powers not explicitly outlined in the Constitution. (Where was Antonin Scalia?) He went on to say, “Although, among the enumerated powers of Government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. It can never be pretended that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution.” Therefore, in this early decision made almost 200 years ago, we see that Chief Justice John Marshall unequivocally rejects the notion that if the Constitution does not say X., Y. or Z. and Congress can’t do it. This in an of itself blows 99% of conservative arguments out of the water.
In 1824, steamboats were probably the fastest mode of transportation. Each state regulated its own waterway. A steamboat owner who operated in New Jersey and wanted to operate in New York challenged a New York law which gave exclusive rights to another company. Gibbons versus Ogden. Not only did the court find in favor of Congress that Chief Justice John Marshall also defined commerce. He stated, “The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.”
To be fair, I should add that the courts tried to limit Congress’ power through the commerce clause in the late 1890s through the 1930s. In 1918 Congress tried to prohibit child labor. In the Hammer versus Dagenhart case, Justice William Day argued, in a 5 to 4 decision, that production was not commerce and therefore outside of the jurisdiction of Congress. So this limited Congress’s power through the commerce clause. Personally, I believe this is a nonsensical argument, since without commerce there’s no reason for production, and production as part of the process. It is part of commerce. The Supreme Court was splitting hairs here. Oliver Wendell Holmes’ dissent was brilliant. He states, “The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate.” This is a GREAT explanation of how the relationship between the States and the Federal Government should interact.
In the United States versus Darby Lumber Company, the Supreme Court overturned the Hammer decision. The Fair Labor Standards Act was passed as part of the New Deal. It regulated minimum wages and maximum weekly hours. It also dealt with child labor. This applied to all corporations that engage in interstate commerce. This unanimous decision came down in 1941. One of the most interesting things in the decision was that Supreme Court dealt with a common argument that conservatives have thrown out for years; states’ rights. The court ruled that, “the 10th amendment is not a limitation upon the authority of the National Government…”
In 1944, the Supreme Court ruled that Congress had the power to regulate insurance.
So, I think it’s pretty clear from the very beginnings of our republic that the Supreme Court’s interpretation of the commerce clause has been very expansive. For more on the commerce clause, I’ve written more here and here. Simon Lazarus of the American Constitutional Society for Law and Policy has written a nice 16-page brief on whether mandatory health insurance is constitutional.
Why don’t conservatives know this? I did a couple of hours of research and found information that is readily available on the Internet or in your local public library. My guess is many conservatives do know this information. Yet, they choose to ignore it while they stoke the anger and frustration of many Americans. The filing of a lawsuit and the multiple op-eds that have been generated seem to be part of a calculated political ploy. This is about politics. Maybe maybe that is what’s so sad about all of this.
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