Nicholas Fitzgerald

Even those with only a cursory knowledge of the constitution can see the federal government in its current state operates far outside the limits imposed on it by the highest law in the land. It is also plain to anyone paying attention that there are forces operating on government from within and from without that have significant undue influence on government operations. Those influences are the primary reason for the current unconstitutional and unsustainable state of our federal government. It is critical to change this. The future of not only this country, but the entire world is at stake.

The constitution is a straight forward document. If you have not read it I suggest you go and read it now, it won’t take very long, (and don’t forget the bill of rights and subsequent amendments), then return here and finish reading this piece. This is the first in a series of pieces I’ll be writing on Effective Constitutional Government. This first piece focuses on the commerce clause, and how it should be applied by the federal government.

I’ve already covered the first thing I would do in my piece Do it Today, published last month. In it I cover how I would repeal the executive orders by Kennedy and Nixon that gave federal public employees the right to unionize. As I point out, I believe this is an inherent conflict of interest. The permissive executive orders of the passed which allowed federal employee unions would be replaced with one banning them, and calling for all federal employee compensation scales be commensurate with those in the private sector. I would execute this immediately, and would subsequently try to have it codified by the congress.

I would then attempt to enact the kind of tax and budgetary legislation outlined in another piece entitled Taxes, Budgets and Borrowing to set the stage for the constitutional reforms outlined in this Effective Constitutional Government series. This won’t be easy, but it will be necessary. Only a President with character, determination and public support working with a congress ready to do the right thing will accomplish this. It’s up to us, the people, to see that the right people are put in place. Without us this isn’t going to happen.

There are areas of the constitution which are treated as gray, or ignored all together. I would work with the congress to enact legislation to clarify how the government is to apply the constitution. While it is in the realm of powers granted to the Judiciary to interpret and apply the constitution to those cases brought before it, I believe the legislative and executive branches of the federal government have a responsibility to review the constitutionality of laws enacted. If not, they would not be required, by the constitution, to take an oath or affirmation to to that effect.

The first thing I would tackle is the commerce clause. The misinterpretation of this one clause in the constitution has given rise to more mischief and catastrophe perpetrated by the federal government than any other part, though not for a lack of trying. The commerce clause is part of the enumerated powers given to the federal government. This enumeration can be found in Article 1, Section 8 of the constitution here:

Article 1, Section 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Beyond the power granted there, the federal government has nothing. This was later insured when the Bill of Rights was passed which included the ninth and tenth amendments:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These enumerated powers, and the amendments which followed, effectively tie the hands of the federal government so they can’t just run roughshod over the states and the people. Unfortunately, the commerce clause, which gives the federal government authority to regulate commerce “among the several states” has been used to circumvent the intended limitations imposed by the constitution on federal power.

In order to pull this back the executive and legislative branches must be held to a specified standard when considering legislation that supposedly falls under the commerce clause. This requires legislation which specifically defines what can be considered as interstate commerce. In considering this I have found that it is, indeed, a complex issue. I would have preferred the founders give more detail as to how they defined interstate commerce. Of course when you’re in a room full of honorable men, you can be forgiven for not assuming they would try to obfuscate the issue.

I could spend several weeks explaining how the commerce clause has been obfuscated, bastardized and misused in more ways than you would believe. I’m not going to do that. Instead, I’m just going to try to define interstate commerce and how the federal government should apply the commerce clause to it.

These days interstate commerce actually is a fairly complex issue. Consider the following scenario: Suppose I want to buy a new hard drive for my computer. I go online and find the hard drive I want on a reputable website and at a fair price, so I decide to purchase the hard drive from this company. I’m in Los Angeles. The company is headquartered in South Bend. The warehouse from which the hard drive will ship is in St. Louis. The server farm where the company’s website is hosted, through which I purchased the hard drive, is located in Dallas. The credit card processing service used by the company on their website to process the sale is located in Boulder.

As you can see this one transaction already involves many states, and we haven’t even gotten to the banks and shipping company yet. The point is, the scenario described is interstate commerce. I would define interstate commerce as a transaction or contract between two or more entities principally located in at least two separate states. This allows the federal government to regulate a transaction such as described above, and the terms and execution of any part of a contract that meets the criteria of interstate commerce.

So what, exactly, can be regulated by the fed? Only the transaction itself. While the hard drive is sitting the the company warehouse in St. Louis it is subject to the laws of the State of Missouri, and St. Louis city and county. When the transaction is executed applicable federal laws become effective. Once the transaction is complete, the seller has my money and the hard drive is in my possession, federal law is no longer applicable. The hard drive is now subject to the laws of the State of California and Los Angeles city and county.

In the matter of a contract it would be a bit different. The federal government would only have authority to regulate that portion of a contract which actually deals with the execution of a physical transaction. For instance, suppose my company here in California manufactures computers. As part of my supply chain I have a contract with a plastics company in Florida to supply me with some parts for the computers I manufacture. The contract stipulates the parts should be made to a specific standard that is determined by me and delivered on the 5th of each month in a given quantity. The contract further stipulates that my order for the following months shipment of parts must be quantified, and payment of the previous months shipment must be completed by the 10th of the month. Which parts of this contract can the federal government regulate?

I would propose that it is only appropriate for the federal government to have authority to regulate the actual transaction itself. That is to say, they should only regulate the shipment of the parts and the transfer of the payment to the seller. The rest of this contract should only be regulated by the states of Florida and California. Florida may have a regulation that states the plastics used in manufacturing these parts must meet a higher standard than the one I set, in which case I would be, through my association with the manufacturer in Florida, bound by that law as long as I continue doing business with that company.

There are similar cases where it is quite appropriate for the federal government to regulate, but it is not really a matter of commerce. For instance, what if my company is building critical structural sub-assemblies for a 747, assemblies critical to the structural integrity of the aircraft in flight? Obviously the federal government does have a role to play here in regulating the quality and standards with regard to materials, fabrication and assembly processes, and anything else that might affect the ability of those assemblies to perform their function with the absolute lowest possible risk of failure. While it is safe to assume that a 747 will most likely be used in interstate or even international commerce, a legitimate argument for federal regulation, that is not the primary source of the feds authority in this case. This power does not fall only under the commerce clause, but under the general welfare clause, which I’ll discuss in greater detail in a future piece.

The way the federal government currently applies the commerce clause leads it to basically believe it has the authority to regulate everything, everywhere, all the time. This just is not the case, and was never intended to be. It’s true that interstate commerce is much more prevalent and complex than it was when the constitution was written, but this does not change the intent or scope of the commerce clause. Yes, there are things not conceived of by the founders, but that does not change the definition of a transaction in interstate commerce. That is where the federal government has authority, and that is where it should be limited.

I would work with the congress to enact legislation that specifically defines the roll of the federal government in regulating interstate commerce. Such legislation would limit the federal government to regulating only the actual commercial transaction itself, and not the purpose or subject of it. The main reason for the commerce clause it to keep a disreputable party in one state from defrauding or otherwise ripping off a party in another state. I think it would be best if the federal government stuck to that, and refrained from becoming a disreputable party itself.