When I was in eight grade, and again in tenth grade, I learned about the Constitution. I didn’t learn very much about it, but I did learn about it. I learned that due to the evident failure of the Articles on Confederation, the founding fathers decided that a new governing document was needed. That they held a Constitutional Convention with George Washington presiding, James Madison taking notes, and Benjamin Franklin offering free advice. That they eventually settled on three branches (legislative, executive, and judicial) with checks and balances and so forth. The the First Amendment protects freedom of religion and speech, the Second contains the right to bear arms, and there are a few amendments that do a few other things, though my memory is rather hazy on that point. That’s all that I recall learning about the Constitution, the most important document in American history.
This week the Constitution will be center stage as the Supreme Court hears arguments for and against the main part of the Patient Protection and Affordable Care Act, better known as Obamacare. The central question is whether it’s legal for Congress to pass legislation requiring all individuals and employers to purchase health insurance. Obama and his fans say it is. Most Republicans say it is not. The pundits are furiously trying to predict the outcome, with no clear consensus. What is clear is that Obama’s argument rests on a part of the Constitution that my 8th- and 10th-grade teachers never mentioned: the commerce clause.
They never mentioned that in Article 1, Section 8 of the Constitution, there is a list of eighteen things that Congress can do, and it’s intended to be an exhaustive list. They never mentioned that to remove all doubt, the framers wrote the Ninth and Tenth Amendments, clearly stating that Congress may not do anything which isn’t listed. They never mentioned that today the federal government has countless offices, agencies, and entire departments with no firm basis in the Constitution. And they never mentioned that the official excuse for almost all of them rests on a single clause in Article 1, section 8, which empowers Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”. Yes, there’s a lot that my education skipped over.
Nowadays whenever Congress wants to do something that isn’t listed in that section of the Constitution, and whenever they face a court challenge over it, they claim that the commerce clause lets them do it. The commerce clause allows agricultural subsidies. The commerce clause allows anti-pollution measures. The commerce clause allows labor law. And the Supreme Court invariably accepts these arguments. In the 2005 case Gonzales vs. Raich, the Supreme Court even ruled that Congress can criminalize growing marijuana on your own property for your own consumption, because that falls under “commerce among the several states”. According to the Supreme Court’s logic, there doesn’t seem to be any activity that isn’t commerce among the several states.
Some legislation that’s snuck in under the mutant interpretation of the commerce clause is good, such as the Clean Air and Water Act. Some is bad, such as the marijuana prohibitions. But very little of it can rationally be classified as interstate commerce. And that leads us to a strange fact. Almost everything that the federal government does these days is illegal. Almost all parts of the federal government are unconstitutional. And while we constantly here certain parties shrieking about the needed to uphold small parts of the Constitution (The Second Amendment lets us own howitzers! The First Amendment demands the destruction of war memorials!) we see few people who honestly believe that we should govern the USA according to the entire thing.
So what’s the solution? I don’t know, but more widespread knowledge about the Constitution would be a good place to start. I imagine I’m not the only one who was never required to read it during my public school education. If you’re in that category as well, strike back at ignorance by reading the actual document. Here’s a link: