Ted Cruz and Mario Loyola are distinguished scholars who make the argument that constraints on federal power have all but vanished from out of the Constitution. Notwithstanding, the battle against unconstrained federal supremacy continues in the federal courts, and there have even been a few victories and precious groundwork lain for the resurgence of an “originalist” approach to the Constitution, as well as a restoration of the Republic in which the federal government has limited powers.
Perhaps the most important power granted to Congress (though the Framers did not intend this to be the case) has turned out to be the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” As has been widely noted, the principal motivation for granting this power to the federal government was the concern that individual States might erect tariff barriers, and thereby discriminate against interstate commerce. During the 19th century, the Commerce Clause was invoked chiefly to overturn state laws that discriminated against interstate commerce. But as late as the early 20th century, the Supreme Court was unwilling to allow this power to reach commercial activity that was purely intrastate.
Starting around 1914, however, the Supreme Court began to embrace an ever-widening interpretation of the Commerce Clause. In the Shreveport Rate cases, the Court articulated a novel basis for intruding on purely intrastate commerce: Where interstate and intrastate commerce were so mingled that regulation of interstate commerce required incidental regulation of intrastate commerce, the activity fell within the commerce power, because of their “close and substantial relation.” As it happened, the victim of this first expansion of federal commerce power was Texas: the Court had ruled that the federal government could regulate the fees charged by a railway between Dallas and Marshall, Texas. The law protected those purely intrastate carriers who faced penalties for disobeying the regulations of the Texas Railroad Commission, in order to comply with federal mandates.
In the 1935 case of Schechter Poultry v. U.S., the Court once again asserted its role as a powerful guardian of constitutional constraints, striking down federal regulation of labor conditions in a purely intrastate business because the activity in question bore only an “indirect” relation to interstate commerce. The Court reasoned that otherwise “there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”
The Court was no doubt correct about the looming danger of unlimited federal power and “a completely centralized government,” but the political winds were blowing against it. FDR won a landslide reelection in 1936 and in an address to Congress in early 1937 threatened to pack the Supreme Court with additional justices, implicitly warning that if the Court did not acquiesce in his New Deal legislation, he and the Congress would break its power. The Supreme Court reacted that very year, in the case of NLRB v. Jones & Laughlin Steel Corp., by casting aside the categories of direct and indirect effects, and holding instead that Congress could regulate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” in state law.
With that, the Court opened the door to all but eliminating the Constitution’s constraints on federal power exercised under the Commerce Clause. The stage was now set for the 1942 decision of Wickard v. Filburn, in which the Supreme Court held that a farmer’s private cultivation of wheat for purely personal use on his own farm could nevertheless be regulated pursuant to the Commerce Clause, because any activity which, in the aggregate across the Nation, could have a substantial effect on interstate commerce, was properly within the power to regulate commerce “among the several States.” If this purely personal activity affected interstate commerce, then every activity falls within the power of the federal government. Wickard expanded the Commerce Clause to its outermost limits—so much so, indeed, that it arguably made the other enumerated powers of the Article I, Section 8 superfluous.
If the Framers had intended to grant the federal government a power to regulate commerce as expansive as that defined in Wickard, there was no need to enumerate so many other powers in addition to the Commerce Clause. Why specifically authorize Congress to create a Post Office (Art. I, Section 8, cl. 7); or regulate bankruptcies (Art. I, Section 8, cl. 4); or protect patents and copyrights (Art. I, Section 8, cl. 8)—if anything that in the national aggregate which might have an effect on commerce (as all those assuredly do) could be regulated already under the Commerce Clause?
Friday, February 25, 2011
Monday, February 7, 2011
Reflections on Ronald Reagan: What If? (Issue #488)
If you have memories tied to Reagan and his presidency, you may find it hard to believe that it has been 30 years since Ronald Reagan’s First Inauguration. On February 6th, 2011 we celebrated the 100th anniversary of his birthday, which means he was nearly 70 years old when he took office becoming our 40th president. He is still the oldest president Americans have ever elected. Maybe it was his optimism or sense of humor and easy laughter, but he seemed quite young at the time—more youthful frankly, than Nixon, Ford or Carter.
The Reagan Revolution was a great moment in history, and I am grateful to have been alive. Reagan said that gratitude opens a door to deeper wisdom. Reagan was a thinker, even though his detractors liked to pretend that he was unsophisticated and even simple. History has borne out that Reagan achieved a lot and certainly he changed the tenor of the time. I am mindful, however, that the Reagan Revolution was not and is not completed, not to its full extent as I understood it then.
I know there are disagreements within the conservative movement, in terms of just what the Reagan Revolution entailed. But I was a student of politics at the time and listened intently to what Reagan said. I am confident in the assertion that Reagan would not have supported the runaway spending in Washington, or the fearful concentration of power in the federal government that has occurred since he left office.
Let me suggest a few more things he may have done. He no doubt would have supported some version of the War on Terrorism, possibly even before 9/11. You know I remember being shocked and dismayed while at Ft. Bragg going through an Individual Terrorism Awareness Class in July 2000 (over a year before 9/11 when Bill Clinton was president)—and finding out, the administration actually knew who Osama bin Laden was. They knew he had declared war on the United States. For the life of me I can’t imagine why, but most of the Army did not know this, and the American people sure didn’t know until that fateful autumn day in 2001.
When the planes crashed into the twin towers I was in Kuwait, still helping contain Saddam Hussein in the Southern No-Fly Zone. Reagan was more strategic than either Clinton or George W., and he usually had his priorities straight. Reagan would have taken out the Taliban in Afghanistan after 9/11 the way George W. Bush did. My sense is the invasion of Iraq in 2003 would have been superfluous, because he would have taken care of Saddam Hussein the very first time he violated terms of the March 1991 truce—instead of putting up with more than a decade of risky expensive international containment paid for by the American taxpayer! In no wise would Reagan have supported the indefinite undeclared warfare we see today, or embarked on the same level of democratic nation-building. His foreign policy was of the realist school and tended to be bi-partisan.
On the domestic spending front, he would have used his veto many times over the last decade to be sure and probably would have taken on Republican and Democrat pork. We never would have doubted his intention to nominate strict constructionist judges for the Supreme Court—judges who would overturn Roe v. Wade.
I don’t believe he would have sanctioned the loss of freedom in a cynically named “Patriot Act” without sunset provision or oversight of the Executive Branch, or without reading it. I can’t imagine he would have continued to leave our borders unsecured either, in the wake of drug violence, kidnappings and murder—particularly since he tried a one-time amnesty program, which was expressly predicated on a national requirement to secure the southern border and to regulate immigration.
Of course this is hypothetical conjecture. We can’t know for sure what President Reagan would or would not have done, in lieu of George Herbert Walker Bush, Bill Clinton, George W. Bush, or Barack Obama. Like every other president, Reagan came into office with a set of goals and objectives; his actual record inevitably falls short and is mixed—he reduced overall government spending during his first term only to see it go up again in his second. Then there’s the debate over what constitutes his actual historic legacy, not to mention what unfinished legacy remains for those of us who count ourselves among his philosophic heirs.
To me the political environment today is reminiscent of the Reagan Revolution. Reagan’s agenda developed in the late 1970s and put into practice in the early 1980s received momentum during a period of financial crisis, and represents a similar critique to what is espoused by the Tea Party in the wake of today’s financial crisis. (And we thought Carter was bad!). For every action, government still has an equal and opposite government program. Government still subsidizes error, drags down the economy, burdens posterity with debt. Ronald Reagan’s speeches are full of references to the necessity of fiscal responsibility—of spending less and reducing the deficit; of returning to limited constitutional government; of free enterprise and free market solutions.
What this indicates to me is that the progressives joined in the battle again, after Reagan. They conducted a counterattack and have made headway. Capitalism may have won internationally, but socialists are rife in this country and continue to drive home their agenda. It is perhaps true that no political battle is ever won once and for all. That is why Reagan cautioned that our freedom cannot be handed down in the bloodstream—it can never be taken for granted. Every generation must perform its duty, add its weight, and help pull the wagon.
The Reagan Revolution was a great moment in history, and I am grateful to have been alive. Reagan said that gratitude opens a door to deeper wisdom. Reagan was a thinker, even though his detractors liked to pretend that he was unsophisticated and even simple. History has borne out that Reagan achieved a lot and certainly he changed the tenor of the time. I am mindful, however, that the Reagan Revolution was not and is not completed, not to its full extent as I understood it then.
I know there are disagreements within the conservative movement, in terms of just what the Reagan Revolution entailed. But I was a student of politics at the time and listened intently to what Reagan said. I am confident in the assertion that Reagan would not have supported the runaway spending in Washington, or the fearful concentration of power in the federal government that has occurred since he left office.
Let me suggest a few more things he may have done. He no doubt would have supported some version of the War on Terrorism, possibly even before 9/11. You know I remember being shocked and dismayed while at Ft. Bragg going through an Individual Terrorism Awareness Class in July 2000 (over a year before 9/11 when Bill Clinton was president)—and finding out, the administration actually knew who Osama bin Laden was. They knew he had declared war on the United States. For the life of me I can’t imagine why, but most of the Army did not know this, and the American people sure didn’t know until that fateful autumn day in 2001.
When the planes crashed into the twin towers I was in Kuwait, still helping contain Saddam Hussein in the Southern No-Fly Zone. Reagan was more strategic than either Clinton or George W., and he usually had his priorities straight. Reagan would have taken out the Taliban in Afghanistan after 9/11 the way George W. Bush did. My sense is the invasion of Iraq in 2003 would have been superfluous, because he would have taken care of Saddam Hussein the very first time he violated terms of the March 1991 truce—instead of putting up with more than a decade of risky expensive international containment paid for by the American taxpayer! In no wise would Reagan have supported the indefinite undeclared warfare we see today, or embarked on the same level of democratic nation-building. His foreign policy was of the realist school and tended to be bi-partisan.
On the domestic spending front, he would have used his veto many times over the last decade to be sure and probably would have taken on Republican and Democrat pork. We never would have doubted his intention to nominate strict constructionist judges for the Supreme Court—judges who would overturn Roe v. Wade.
I don’t believe he would have sanctioned the loss of freedom in a cynically named “Patriot Act” without sunset provision or oversight of the Executive Branch, or without reading it. I can’t imagine he would have continued to leave our borders unsecured either, in the wake of drug violence, kidnappings and murder—particularly since he tried a one-time amnesty program, which was expressly predicated on a national requirement to secure the southern border and to regulate immigration.
Of course this is hypothetical conjecture. We can’t know for sure what President Reagan would or would not have done, in lieu of George Herbert Walker Bush, Bill Clinton, George W. Bush, or Barack Obama. Like every other president, Reagan came into office with a set of goals and objectives; his actual record inevitably falls short and is mixed—he reduced overall government spending during his first term only to see it go up again in his second. Then there’s the debate over what constitutes his actual historic legacy, not to mention what unfinished legacy remains for those of us who count ourselves among his philosophic heirs.
To me the political environment today is reminiscent of the Reagan Revolution. Reagan’s agenda developed in the late 1970s and put into practice in the early 1980s received momentum during a period of financial crisis, and represents a similar critique to what is espoused by the Tea Party in the wake of today’s financial crisis. (And we thought Carter was bad!). For every action, government still has an equal and opposite government program. Government still subsidizes error, drags down the economy, burdens posterity with debt. Ronald Reagan’s speeches are full of references to the necessity of fiscal responsibility—of spending less and reducing the deficit; of returning to limited constitutional government; of free enterprise and free market solutions.
What this indicates to me is that the progressives joined in the battle again, after Reagan. They conducted a counterattack and have made headway. Capitalism may have won internationally, but socialists are rife in this country and continue to drive home their agenda. It is perhaps true that no political battle is ever won once and for all. That is why Reagan cautioned that our freedom cannot be handed down in the bloodstream—it can never be taken for granted. Every generation must perform its duty, add its weight, and help pull the wagon.
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