An Assembly of Pieces

James Anderson Merritt's piecemeal thoughts and observations, and the occasional attempt to put some of the pieces together.
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All material except cited quotations Copyright (C) 2004-2008 by James Anderson Merritt. All rights reserved.
Saturday, June 11, 2005
Commerce Clause Delenda Est

I recently published versions of the following on the blogs of Reason magazine, and the US Libertarian Party. I'm serious about this. Does anyone want to help? Write your Senators and members of Congress!

I guess what the Justices are telling us, in Raich v. Gonzales, is that the plain language of the Constitution isn't specific enough to prevent clever legislators and lawyers, abetted by intellectually perverse Justices, from wriggling free of the legal "chains" that were once forged to restrain the federal government.

The States, whose own medical marijuana legislation was trumped by the Supreme Court ruling, can have the last laugh here, if only they have what it takes to act.

Clearly, we now need a new amendment to the Constitution, which limits the Commerce power. This suggestion is not an overreaction to the present ruling, nor overkill, even if the original impetus were simply to legalize medical marijuana. From dissenting justices on down, many intelligent people are now believing that Congress has no effective limits on its regulatory (or police) powers. Making a ham sandwich in your kitchen with locally baked bread and meat grown and processed in the next county can be considered interstate commerce -- or, at least, subject to regulations on interstate commerce -- so long as there is an interstate market in pre-made ham sandwiches and a comprehensive federal scheme to regulate that market.

This situation cannot stand, and as the Court has declined to rebuke Congress, the States are the only ones who can reduce Congress to its proper role in our federal system. As I read the Constitution, that can only be done through the constitutional amendment process.

Here is my first draft of what the Commerce Clause Clarification Amendment should say. I'm sure that the constitutional mavens out there (especially the ones in DC) can come up with better, but I'm tossing this draft into the ring because we need to get the ball rolling right away. If Raich stands and is used as precedent for too many more years, I can't imagine what the US will be like -- but I bet Orwell could.

If any of you out there can simplify and/or strengthen the following, please do!


Congress' authority to regulate commerce among the several states shall not include the power to prohibit commerce, either directly, or indirectly, through onerous regulation or the imposition of excessive fees or taxes.

Congress' interest in the regulation of commerce among the several states shall always be to promote commerce, not restrict or prevent it.

Congress shall make no law that regulates commercial activities, to the extent that they occur entirely or substantially within the borders of a single State. The President shall not enforce laws in such a manner as to have the effect of regulating or constraining commercial activities, to the extent that they occur entirely or substantially within the borders of a single State. In making, applying, and enforcing law, the burden of proof is on the federal government, to establish, by a preponderance of evidence, and using arguments that are both pertinent and compelling, the extent to which any particular class or instance of commerce occurs "among the several states."

Activities pursued or goods produced or acquired in avoidance of normal commerce shall not themselves be considered "commercial," or suitable as objects of regulation under the authority this Constitution gives the Congress.

With all deliberate speed, Congress shall examine federal commercial regulation that exists at the time of the enactment of this Amendment, and shall repeal any such law that is found to be in conflict with the letter or spirit of this Amendment. The President shall issue pardons for any convictions that were based on any laws so repealed.


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