Read Part I, Part II, and Part III of this series.
Judicial review has three principles: (a) the Constitution is the supreme law of the United States, (b) the Supreme Court possesses the ultimate authority in constitutional rulings, and (c) the judiciary is obligated to rule against any law that conflicts with the Constitution. The Constitution’s words matter. Where explanation was necessary, the Founders' writings are sourced to explain rejection or confirmation.
Looking beyond obvious cases the Supreme Court exceeded its charter, let’s consider the issue of the Commerce Clause and its distortions by judicial activism.
President Obama referred to Constitutional Article I, Section 8 description of specific government responsibilities as “negative rights” (i.e. what government is constrained from doing).
However, Article I limitations, through SCOTUS judicial activism, were compromised to provide political maneuvering that gave government unlimited access to personal and state regulation via (what else) the Commerce Clause.
The co-founder of Home Depot observed in 2011 that he could not start his original business in the current regulatory environment. What might be the basis of that startling statement?
In Gibbons v. Ogden, 22 U.S. 9 Wheat. 1 (1824), the Supreme Court affirmed that Congress could regulation interstate commerce. It, however, did not include or extend to regulation of individuals within the respective state boundaries.
For some ten decades Congress judicially and cautiously applied the Commerce Clause.
Then along came the 1930s, the Great Depression, and the congressional response directed by President Roosevelt that was supposed to revive the sagging economy.
In the late 1930s to early 1940s, Congress abdicated its legislative responsibility while President Roosevelt--through a court stuffing threat--intimidated the Supreme Court to depart responsible application of the Commerce Clause.
Judicial activism began in 1937 with the National Labor Relations Board (NLRB) v Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937) and culminated in Wickard v. Filburn, 317 U.S. 111 (1942), regarding wheat quotas. The Supreme Court also overturned the Railroad Retirement Act, previously perceived as an employer-to-employee process. Likewise, the National Industrial Recovery Act was overturned for similar reasons. It further negated the Bituminous Coal Conservation Act for fixing prices, wages, hours, and working conditions.
In the NRLB case, intrastate activity--having a close relation to interstate commerce--was determined by the Supreme Court an area that could be controlled by Congress.
In the Wickard v. Filburn case, the personal use of farmer Filburn’s wheat within Ohio impacted the interstate commerce of wheat because he did not purchase on the open market, an interstate activity.
This act of judicial activism fails the “giggle test” described by Professor Richard Epstein’s article “Constitutional Faith and the Commerce Clause, 1996." By the Supreme Court's reasoning, everything moving from any state to another state is controllable by Congress.
For 60 years Congress has permitted administrative bureaucracies to intrude in hospitals, insurance, nursing, education, banking, farming, mining, pastries, cars, and bicycles. If such laws are truly needed, they are the responsibility and purview of local and state governance under the Tenth Amendment.
Today’s political speech promoting a “Democratic Standard of Socialism” is mistakenly based on the false notion that we are enlightened sufficiently to make it work. To advocate for this, the advocates must ridicule U.S.S.R., Venezuela, North Korea, and Cuban authoritarian collectivism.
And yet, they fail to grasp that the natural outcome of power is to corrupt, because “absolute power corrupts absolutely” (Lord Acton). Human history is a tendency to go to the dark side. The Founders knew this. The original Constitution, with all its imperfections, is the closest possible solution and can be so again.
Citizen rights originate from God--not from government, not from England’s King, and not from the judiciary. It is noteworthy that 15 states have now passed Article V resolutions to call a Convention of States to impose fiscal restraints, term limits, and limits on federal power. About 19 more are in the process of supporting it.
A Convention of States could propose the following solutions:
• The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress.
• Term limits on Congress.
• Limiting federal overreach by returning the Commerce Clause to its original meaning, perverted by Wickard v. Filburn, 317 U.S. 111 (1942).
• Limiting the power of federal regulations by giving a congressional override.
If we hold these truths as self-evident, Article V begins to swing the ship of state toward the course the Founders intended. Your participation to understand its value and engage as a citizen is imperative.
