Last week we wrote concerning the issue of “enemy combatants”, and the Supreme Court’s having afforded rights to terrorists that should be reserved only for citizens of the United States.

Today, we want to move into the area of individual liberties for our citizens. We have observed over the years, the encroachment on our individual rights and freedoms, and most have not understood the process whereby those freedoms have been lost. We want to give an example of how a single clause in the Constitution has been so eviscerated from it’s original intent, and twisted into something it was never intended to become, so as to facilitate the gradual evolution of socialism in our free enterprise society.

The commerce clause can be found in the United State Constitution under Article I, Section 8, Clause 3, which states “To regulate Commerce with foreign Nations, and among the several States…”.

Mark R. Levin gives us an example of what the “commerce clause” has been interpreted to justify in Wickard v. Filburn. The case involved a a dairy farm in Ohio where the farmer used a portion of his own land to grow wheat. He sold part of what he grew, he fed part to his livestock, he made flour out of part, and he held the balance to sow for the next years crop. Even though none of the wheat grown by Roscoe Filburn ever left the borders of the State of Ohio, the Court ruled that Congress could regulate the amount of wheat a farmer could grow on his own land. Congress had passed the Federal Agricultural Adjustment Act of 1938, and Roscoe Filburn had violated the law, by growing too much wheat. Levin quotes the court’s rationale as follows:

1. Filburn grew excess wheat on his farm, as determined by a marketing quota established by the federal Agricultural Adjustment Act of 1938:
2. Filburn used that excess wheat to feed his livestock;
3. because of the excess wheat, Filburn would not have to purchase wheat on the open market;
4. by not purchasing wheat on the open market, Filburn was affecting interstate commerce.

By what sophistry of argumentation could the Court have possibly used to determine that interstate commerce had been affected by this farmer’s bad luck of growing too much wheat? The Court wrote the following:

“It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”

Generally during the course of these Saturday Evening Judicial Review Posts, we have argued that the Court was encroaching upon the powers granted to the Legislative Branch. The argument today points in the opposite direction. The Court has expanded the powers of the Legislative Branch, by granting extraordinary powers to regulate based on the “commerce clause” of the Constitution above.

To carry this further, the amount of regulations, and taxes now paid by United States Citizens has made us into a fifty percent socialist society. Milton Friedman in a phone conversation with Bill Steigerwald of the Pittsburgh Tribune Review, stated the following:

“In the United States today, the average individual, whoever he is, works from Jan. 1 to the middle of June or late June to provide funds that the government controls.

That is to say, government at one level or another, federal state or local - directly through spending and taxes and indirectly through rules, regulations and mandates - controls half the national income and can determine how that is spent.

We’re 50 percent socialist. Now, is that half freedom or half slavery? Neither of those statements would be wrong: we’re partly free and we’re partly enslaved.”

Levin cites the Cato Institute, in which he says:

“…has estimated that the cost of regulatory compliance to our economy is $860 billion a year. To put this number in perspective, that’s 8.2 percent of our gross domestic product”.

We write all this to say that the Supreme Court of the United States has over the years ignored the Constitution to create law from the bench, and it has expanded federal power to the point of superceding the authority of the states, and denying liberty to it’s citizens.

The framers put the “commerce clause” in the Constitution to promote commerce between the states, and between citizens. The Supreme Court has reversed that intention to make the “commerce clause” the most regulatory clause ever penned by man.

Could this possibly be the reason we have seen no real movement on the part of Congress to reform the Judiciary? Perhaps Congress is willing to be the benificiary for an expanded Federal Government, and in return allows the Courts disgression for Judicial Activism.

We once again want to extend our thanks to Mark R. Levin for writing his brilliant book, Men In Black. If you have not bought and read this book, do so now. We are at a crossroads in American History, and the next few weeks and months may begin to reverse the delitorious effects of Supreme Court activism.

This entry was posted on Saturday, July 9th, 2005 at 4:18 pm and is filed under Saturday Evening Judicial Review Post. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

Tags: commerce clause, Judicial Activism, individual liberty, Supreme Court