April 6, 2018

Absolute government power corrupts absolutely

By Timothy R. Snowball Attorney

This is the eighth part in a series discussing the principles of the American founding, their embodiment in the United States Constitution, and the ways in which the Supreme Court has all too often negated these principles to the detriment of individual liberty:

As previously discussed, the Framers of our Constitution set up a system of limited government. Congress, while the intended primary branch of the federal government, was specifically limited in what powers it could and could not exercise. So confident were the federalists (those who supported the proposed Constitution at the time of the founding) that a specific enumeration of limited powers would be enough to constrain the first and subsequent Congress’s from abusing individual rights, that they did not even think including a Bill of Rights was necessary! Among the powers listed in Article 1, Section 8 is the power to establish inferior federal courts to the U.S. Supreme Court, the power to establish a national currency, and the power to establish post offices and borrow money. Most of the powers listed share this same trend toward legislating broad concerns of national importance, while leaving specific “policing” of individuals to the states and local governments. However, also included among the powers of Congress is a clause that, while appearing innocuous on its face, has caused more constitutional harm to our republic than perhaps any other misinterpreted clause in the entire Constitution: the Commerce Clause.

The Commerce Clause reads that Congress shall have the power “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The language employed here seems straightforward. What was meant by “commerce” in the 18th century? The transport of goods necessary for trade in a market economy. Why was such a clause necessary? Because the Framers wanted to establish the power to regulate commerce in the new national government, rather than with the constituent states. The fear was that if left to the states, the power to regulate commerce could not only be used to inhibit trade amongst themselves by passing tariffs or other taxes on goods from neighboring or other states, thus damaging the national economy, but could be used to enact these protectionist policies against foreign nations, negatively affecting international relations. The Commerce Clause was thus nothing more or less than an attempt to prevent the inhibition of open trade without congressional approval.

Unfortunately, it became the vehicle for nearly unlimited congressional power.

All Roscoe Filburn wanted to do was grow wheat on his own land for his own consumption. But that is not what the federal government wanted. As part of the bevy of economic intervention and manipulation enacted by FDR and the New Dealers in the 1930s and 40s, the Agricultural Adjustment Act of 1938 limited the amount of land a farmer could use to grow wheat. The stated purpose behind the Act, enacted under the power of the Commerce Clause, was to stabilize the national market by controlling the supply of wheat. Filburn was subsequently accused of violating the provisions of the Act. But he countered that not only was he not growing wheat for sale, but was doing so wholely intrastate (inside one state) and not interstate (crossing state lines). Therefore, he argued that Congress had no power to regulate his wheat field.

But that is not how the Supreme Court saw things during the New Deal.

Packed with eight (out of nine) justices appointed by FDR himself, the Court found in what became one of the most notorious decisions in history that “Whether the subject of the regulation in question was ‘production’, ‘consumption’, or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'” This holding was a stunning departure from both the plain meaning and purpose of the Commerce Clause as intended by the Framers. Just because a commodity is traded on a national market does not mean that Congress’s power was meant to reach its production in any case whatsoever, no matter what. Such a system could not longer rightly be described as a government of limited powers. In Wickard, the Court placed politics over principle, and in subsequent decades the Commerce Clause became one of Congresses primary tools for regulating all aspects of the lives of Americans,  to the detriment of individual liberty.

James Madison, the “Father of the Constitution,” once wrote: “”If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.” This is the threat enabled by cases like Wickard v. Filburn, this is the cost of judicial abdication, this is the fight we face to restore the republic.


Part 1: Government is not the source of our rights

Part 2: Government power must be limited

Part 3: Individual rights trump government power

Part 4: Judges should do their jobs

Part 5: All rights were created equal

Part 6: All men are created equal

Part 7: Liberty is more important than security

Part 8: Absolute government power corrupts absolutely

Part 9: The greatest threat to liberty

Part 10: The solution to unconstitutional government: Fight Back

What to read next