Thursday, August 06, 2009

The Right Way to Amend the Constitution, part 7

This is part seven of an ongoing series of articles containing proposals for amendments to the Constitution. For someone who claims so fervently to be a “Constitutionalist”, how is it that I can be so eager to change the Constitution? Well, there are several reasons. For one thing, I believe that after the Bill of Rights, much damage was done by some of the amendments that were added and the legitimacy of some of their ratifications are questionable. Secondly, the Constitution has been violated so much that the necessity of further amendments is needed to resolve the resulting problems. But this should be done extremely cautiously. These amendments are extremely unlikely to ever be introduced, much less ratified, but hey, I can dream, can’t I?

The title for this week’s proposed article of amendment (subject to revision) is The Interstate Commerce Clause Abolishment Amendment, the text of which follows:

The United States shall not regulate commerce among the several States.

Commentary on this proposed amendment:

Article I section 8 states:

The Congress shall have Power to … regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Due to the routine abuse of this clause and the fact that the United States is much larger than it was when the Founders formulated the Constitution, I think the power of the Congress should be revoked in this matter.

This clause has been used to say that a man can’t feed his own cattle with his own wheat because if he doesn’t make it available to people in other states, then it affects interstate commerce. Of course, this is obviously judicial activism, but in other cases it’s iffy. I believe that the original definition of “regulate” was “to make regular”, not “to make (any) rules concerning”. Article I section 9 says:

No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

I believe that this is the sort of thing (fair trade) that the Founders were talking about (the clause in section 8 could be extended to similar situations), not banning export of oranges from Florida if they aren’t orange enough or if they have too much pesticide on them.

Click here for the next article in this series.

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