Not many people, today, are interested in Constitutional arguments.

Oh, sure, every now and then a few Supreme Court Justices offer Constitutional sophistries to justify yet another un-Constitutional law or un-Constitutional regulatory agency. (“It’s a tax! And it’s not a tax! At the same time!” writes a joking Chief Justice Roberts as he completes his application for the next opening on Comedy Central.) And there is a small cottage industry of law school professors who invent and refine those sophistries.

Most ordinary, practicing lawyers, however, have little interest in or use for Constitutional arguments.

And, of course, the vast majority of Congress and virtually all Presidents in the modern era find any mention of the Constitution to be not much more than a laughing matter. (Except on the very rare occasion they find themselves being impeached—then they become serious students of the Constitution.)

Elected members of Congress and elected Presidents typically care only whether they have the votes needed to pass their proposed bills of control and confiscation, not whether their proposed bills of control and confiscation are Constitutional. Because almost all of them are not.

 

COMMERCE CLAUSE: CONSTITUTIONAL BLANK CHECK

 

Still, every now and then in modern politics, a Constitutional argument appears that seems to “stick.” People remember it. Especially when it provides the people in government with a blank check for power.

The modern, progressive jurisprudential Interstate Commerce Clause argument is precisely that kind of argument.

Premise: Congress, you see, has power “to regulate commerce…among the several states,” according to Article 1, Section 8 of the Constitution. Now let’s extrapolate and expand, and think like progressive intellectuals and jurists.

Originating in a 1942 case involving a renegade farmer who grew his own wheat, on his own land, so that he and his family could eat it, in blatant violation of Department of Agriculture regulations and federal law—Wickard v. Filburn, 317 U.S. 111—and developed in later court cases, the modern progressive Interstate Commerce Clause argument effectively affirms the power of Congress to regulate any and every human activity that in any way affects “the economy,” because anything that affects “the economy” affects Interstate Commerce.

To which I respond: Any and every human activity can be shown to affect “the economy” in some way, either directly or indirectly.

Examples: The amount of sleep you get at night, your romantic relationships, the food you eat, the physical exercise you get, how much time you spend on the Internet, the books you read, the thoughts you think, and your mood when a new business opens near your home or an oil well is fracked or a comedian on late night TV says something you find offensive or an election concludes in a way you don’t like, all affect your behavior.

  1. And all of your behavior produces effects that can be measured economically.
  2. Which means all of your behavior affects “the economy.”
  3. Ergo, Congress has the power to regulate everything that affects your behavior, including every one of the examples above, and many more, because Congress has the power to regulate every human activity that in any way affects “the economy,” because anything that affects “the economy” affects Interstate Commerce.

Carried to its logical conclusion, the modern progressive Interstate Commerce Clause argument means that Congress has no limits whatsoever on its power. Members of Congress may legislate and regulate every aspect of human life and all forms of property—and pretty much everything else—in the name of regulating “the economy,” which affects Interstate Commerce.

 

COMMERCE CLAUSE: NO NEED FOR CONSTITUTIONAL AMENDMENTS

 

If the modern progressive Interstate Commerce Clause argument is true and right—IF Congress has the power to legislate and regulate every aspect of human life — THEN the 1st Amendment was not needed to prohibit an establishment of religion, or to protect the free exercise of religion, and the freedom of speech, and the freedom of the press, and the right of the people peaceably to assemble, and the right of the people to petition the government for a redress of grievances. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 13th Amendment was not needed to abolish slavery. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 14th Amendment was not needed to ensure that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, or to prohibit states from depriving any person of life, liberty, or property, without due process of law or to deny to any person within its jurisdiction the equal protection of the laws. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 18th Amendment was not needed to regulate and prohibit the manufacture, sale, and transportation of alcohol. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 19th Amendment was not needed to prohibit states from prohibiting women from voting. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 21st Amendment, which repealed the 18th Amendment, makes no sense. Congress may do anything it wants in the name of its Interstate Commerce Clause power. So what does it matter if any Amendment is repealed or not?

The 24th Amendment was not needed to ensure that the right to vote shall not be denied or abridged by reason of failure to pay any poll tax or other tax. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

The 26th Amendment was not needed to set the voting age at 18 years old. Congress could have accomplished that by passing a law in the name of its Interstate Commerce Clause power.

 

THE LOGICAL EXTENSION OF THE INTERSTATE COMMERCE CLAUSE ARGUMENT

 

If the modern progressive jurisprudential Interstate Commerce Clause argument is true—that the Interstate Commerce Clause grants power to Congress to regulate every human activity that in any way affects “the economy,” whether directly or indirectly—then no Constitutional Amendment would be needed. Ever. For any purpose.

Because anything that has been or every will be enshrined or changed by Constitutional Amendment can be interpreted as having some kind of an effect on “the economy,” directly or indirectly. And, according to the modern progressive view of the Interstate Commerce Clause, anything that affects “the economy” affects Interstate Commerce and therefore can be legislated by Congress. Or regulated by agencies that Congress creates. How convenient. For them.