Claiming Almost Everything is “Commerce”

How can Congress get around the Tenth Amendment and regulate almost every aspect of American life?

One way is by claiming that the Tenth Amendment doesn’t apply because Congress is merely acting within the scope of its enumerated powers.  But to make this claim, one must assume that some of the enumerated powers are much broader than they really are.

One of the enumerated powers cited by advocates of the modern monster-state is the Commerce Power.  This derives primarily from two sources:

(1) the Constitution’s grant to Congress of authority to “regulate Commerce . . . among the several States” and

(2) the Constitution’s grant to Congress of authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . .”

According to promoters of the monster-state, those constitutional phrases go further than allowing Congress to regulate trade among the states.  They also allow Congress to control manufacturing, wages, agriculture, crime, mining, land use, firearm possession, and a range of other activities.

How can they justify this?  Basically, they make two arguments.  The first argument was spun during the New Deal by a University of Chicago law professor.  (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade.  Instead, he contended, “commerce” included all gainful economic activities.  Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor.  He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue.  It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

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