The U.S. Supreme Court created a mild panic among liberals when it
ruled, a few weeks ago, that the Commerce Clause of the Constitution
is finite. In striking down the Violence Against Women Act, which authorized
women to sue their rapists in federal courts, a narrow majority of
the Court took the reactionary radical right-wing position that rape
is not a form of interstate commerce.
Four members of the Court, the dogged liberals, said it was too, even
if the victim isn’t lying across the state line. Why? Because
for liberals, nearly every known human activity qualifies as interstate
commerce and is thus subject to federal control.
One angry critic of the ruling is Peter Shane, professor of law at
the University of Pittsburgh: “Yes, it is common sense that rape
is not commerce. But it is hardly common sense that Congress’s
power to promote commerce is so limited that it cannot legislate against
a practice that costs the national economy billions of dollars annually,
including the burdens of absenteeism and lost productivity.” Since
rape victims often miss work, you see, rape “costs the national
economy billions of dollars annually” (Mr. Shane gives no source
for this figure, if it matters); ergo rape falls within the scope of “interstate
commerce.” That’s “common sense”!
To start at the beginning, the Constitution says tersely that “Congress
shall have power ... to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” Since
the New Deal, the four words “among the several States” have
been expanded to comprehensive, virtually socialist dimensions. The
Court once ruled that a farmer who raised grain on his own land to
feed his own cattle was subject to the interstate commerce power!
Now it stands to reason that if the phrase “among the several
States” was meant to create a power of such breadth as to nullify,
in effect, the rest of a Constitution of limited powers, someone would
have noticed it before the era of Franklin Roosevelt. The Framers of
the Constitution, the Federalists, and especially the anti-Federalists
would certainly have called attention to it. But nobody suspected that
it meant what today’s liberals insist it means.
Certainly Abraham Lincoln never suspected it. He hated slavery, and
the huge slave trade would fit the category of interstate commerce,
even by liberal standards, better than rape or raising cattle. Why
didn’t he argue, at the very least, that the federal government
could outlaw slavery “among the several States”? On the
contrary, he conceded in his first inaugural address that the federal
government had no power to touch slavery where it already existed!
Even when he issued the Emancipation Proclamation, he justified it
as an executive war measure but still acknowledged that Congress had
no legislative power to enact it. (And the Proclamation applied only
to the seceding states, not to the slave states that remained within
the Union.) It took a constitutional amendment to outlaw slavery throughout
the United States.
The same was true of liquor. The liquor industry was certainly a form
of commerce “among the several States,” but everyone understood
that it could be prohibited only if the Constitution was amended. So
the Eighteenth Amendment was adopted, giving Congress the power to
ban liquor sales. Why should that have been necessary, if the power
to “regulate Commerce ... among the several States” was
comprehensive? Obviously nobody thought that power was broad enough
to permit Prohibition by mere act of Congress. Why amend the Constitution
to authorize Congress to do what it was already authorized to do?
By the same token, the repeal of the Eighteenth Amendment by the Twenty-first
Amendment should have made no real constitutional difference. Under
the broad reading of the power to regulate interstate commerce, Congress
can still ban all liquor sales if it wants to.
Some people don’t mind a little constitutional sophistry in
a good cause; and for liberals, centralizing all power in the federal
government is always a good cause. Since most Americans don’t
know or care what the Constitution says, let alone what their ancestors
thought it meant, the great liberal snow job has been very successful.
Copyright © 2011 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on June 6, 2000.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
Watch Sobran's last TV appearance on YouTube.
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during the FGF Tribute to Joe Sobran in December 2009.
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