> Nice... so now text book writers aren't quite liberal enough in their slant of America's history. Glad you know better than the academics who've studied the subject.
It's not a liberal versus conservative distinction. It's a "history" versus "historical revisionism" distinction.
> but why do you think the Articles of Confederation were implemented in the first place?
Because at the time of the founding, the political power lay with the states who had no desire to give it up.
> Even then, it wasn't intended for the Federal government to completely overrule the states using the Commerce Clause. The Commerce Clause has been totally perverted to mean pretty much anything that Congress has wanted it to mean.
The Commerce clause means very close to what it meant almost 200 years ago when it was first interpreted in Gibbons v. Ogden, 22 U.S. 1 (1824).
"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it." 187-188.
"The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 189-190.
"It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States." 196-197.
What the federalists wanted was for the federal government to have broad powers to regulate commercial intercourse (Justice Marshall was a federalist). What happened from 1824 to 2013 is that nearly everything became the subject of an inter-state commercial transaction. Your average American in 1824 could go weeks without engaging in interstate commercial transactions. Today, you do it every time you check e-mail on your smartphone or buy a snickers from the vending machine with a credit card.
The interpretation of the Commerce Clause today is not "perverted." It means more or less what it always has--accounting for Justice Marshall's opinion in Gibbons cementing the Federalist rather than anti-Federalist interpretation of the Clause. A staunch Federalist from 1820 would not be surprised by say Rehnquist-era or Roberts-era interpretations of the Commerce Clause. What's changed is that the nature of society has changed dramatically such that the broad power delegated to Congress in the Commerce Clause, read faithfully, encompasses far more human activity than it did at the time of the founding.
While I can begin to understand (though do not necessarily agree with) the interpretation of "commerce" as just about any activity, and that being possibly understood at the time the Commerce Clause was written, I would still argue that the Commerce Clause has been "perverted" more recently by cases that allow for interpreting purely intrastate activities as interstate commerce.
The earliest explicit justification of that trend in interpretation (that I'm aware of) is Wickard v. Filburn, in 1942[1].
The prevailing interpretation today applies a sort of "butterfly effect" perspective on activity, such that any human activity (even flapping one's arms) will inevitably at some point affect interstate commerce, and can therefore be regulated by the federal government.
So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action.
This interpretation makes the 10th amendment pointless, which is why I consider it "perverse".
Look at the date of Wickard v. Filburn: 1942. It's a war-time case. It hasn't been overruled, but it's not really appropriate to cite it as the state of Commerce Clause jurisprudence today. The most appropriate statement is the one in U.S. Lopez (1995):
Congress may regulate (1) use of the channels of interstate commerce, (2) the "instrumentalities" used in interstate commerce, and (3) activities that substantially affect interstate commerce. (lifting Wikipedia's paraphrasing)
That's really very similar to the scope given in Gibbons.
Remember, the individual mandate was struck down on Commerce Clause grounds, and only upheld on taxation authority grounds. That's where the Commerce Clause stands today after Rehnquist and Roberts.
> So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action.
This isn't actually true. If you're a subsistance farmer using 1824 technology and consuming all the food you produce, Wickard aside there isn't much that the federal government asserts the right to regulate you over. The major issues to the contrary are things that were always latent in the Commerce Clause and exposed by technology. E.g. if you use modern fertilizer, which leaches off your farm into the waterways, then you can be federally regulated over that, but such regulation is consistent with the reasoning in Gibbons itself.
Also, the 10th amendment is a nullity on its face. It basically boils down to "the federal government doesn't have any power it doesn't have." If a federal action falls within a reasonable reading of the Commerce Power, then the 10th amendment isn't implicated.
It's not a liberal versus conservative distinction. It's a "history" versus "historical revisionism" distinction.
> but why do you think the Articles of Confederation were implemented in the first place?
Because at the time of the founding, the political power lay with the states who had no desire to give it up.
> Even then, it wasn't intended for the Federal government to completely overrule the states using the Commerce Clause. The Commerce Clause has been totally perverted to mean pretty much anything that Congress has wanted it to mean.
The Commerce clause means very close to what it meant almost 200 years ago when it was first interpreted in Gibbons v. Ogden, 22 U.S. 1 (1824).
"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it." 187-188.
"The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 189-190.
"It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States." 196-197.
What the federalists wanted was for the federal government to have broad powers to regulate commercial intercourse (Justice Marshall was a federalist). What happened from 1824 to 2013 is that nearly everything became the subject of an inter-state commercial transaction. Your average American in 1824 could go weeks without engaging in interstate commercial transactions. Today, you do it every time you check e-mail on your smartphone or buy a snickers from the vending machine with a credit card.
The interpretation of the Commerce Clause today is not "perverted." It means more or less what it always has--accounting for Justice Marshall's opinion in Gibbons cementing the Federalist rather than anti-Federalist interpretation of the Clause. A staunch Federalist from 1820 would not be surprised by say Rehnquist-era or Roberts-era interpretations of the Commerce Clause. What's changed is that the nature of society has changed dramatically such that the broad power delegated to Congress in the Commerce Clause, read faithfully, encompasses far more human activity than it did at the time of the founding.