When he addressed conservatives at CPAC last week, Sen. Rand Paul discussed the abuse of the Commerce Clause is at the heart of the pro-tort reform movement, and which is on view again especially this week with the continued markup of H.R. 5 by the House Judiciary Committee. Here are Sen. Paul’s comments:
Early on in my campaign I stopped by a book publisher in Shepherdsville, Ky. It’s near Louisville. This book publisher had published Barry Goldwater’s “The Conscience of a Conservative,” the first edition… Barry Goldwater mentions one Supreme Court case in that book: Wicker v. Filburn, many know it. A farmer in California wants to grow 20 acres of wheat. The government says you can only grow 10 acres of wheat. He said, by what authority do you tell me this? And they say, the Commerce Clause, and he said, well, I’m not even going to sell the wheat. I’m going feed it to my cattle, and they say to him, well, by your inactivity, by not doing anything, can you indirectly affect the price of wheat, and they enforce this. That ruling was in the ’40s. For 60 and 70 years now we’ve been working with this notion that the Commerce Clause says that our government can do anything. Until Obamacare came along.
They scoffed at us when we said it wasn’t constitutional. Nancy Pelosi looked like a deer in the headlights; she couldn’t believe that anyone would question the constitutionality. Judge Napolitano asked Representative Clyburn about the constitutionality and Representative Clyburn readily admitted, most of the things we do in Washington have no constitutional authority. It is amazing and appalling.
This Supreme Court case that will be more, about much more than health care. It’s going to be about whether or not we believe that our government should be restrained by the Constitution. I think for 60 or 70 years we’ve been gradually going down this road of becoming more of a majoritarian rule, a democracy. Jefferson said democracy would be nothing more than a mob rule. Our Founding Fathers knew the difference between a republic and a democracy.
Our understanding of the Commerce Clause has become so broad that I often will say, if my shoes were made in Tennessee, they’ll regulate my walking in Kentucky. Recently Senator Coburn in one of the committee hearings asked Elena Kagan, he said, well, do you think the government through the Commerce Clause could regulate you eat three vegetables a day? Her response was, yes. (Emphasis mine.)
Sen. Paul identified himself with a small but growing body of conservative thought that recognizes that the Commerce Clause has become a sledgehammer of excessive power wielded from Washington. As I wrote on January 13, Supreme Court Justice Clarence Thomas voiced his concern when writing a dissent to the Supreme Court’s decision to not hear a case on point, in which the Commerce Clause was used as the basis to criminalize the purchase of body armor by those convicted of violent felonies. Wrote Justice Thomas, “Congress arguably could outlaw ‘the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.’.. The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespass on traditional state police powers.”
States’ rights advocates are seeking more aggresive action to defend the 10th Amendment from the overreach of the Commerce Clause. The Tenth Amendment Center is trumpeting a new bill introduced in the Arizona state legislature which would attempt to nullify the Commerce Clause altogether. “If passed by the Arizona State Legislature and signed by the governor, SB 1178 will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.” That’s an amazing step, essentially an act of civil disobedience, and symptomatic of a rising tide of disgust over the loss of states’ rights.
But it’s not enough yet. A majority of Americans say that they don’t want the Commerce Clause to be used as a basis to compel ObamaCare. But what many Americans, especially in the business community, still don’t recognize is the abuse arising from the flip side of the Commerce Clause: the abuse of basic rights arising from applying the Commerce Clause to prohibit/pre-empt action by the states, to the point of abridging the right to civil jury trials (the 7th Amendment) and states’ rights (the 10th Amendment).
No issue demonstrates the disconnect among mainstream Republicans than the medical malpractice movement, personified by H.R. 5, which would sharply limit all health care lawsuits (not just medmal suits) against a wide range of companies (not just doctors). When Rep. Hank Hohnson challenged Judiciary Committee Republicans to stand up for the 7th Amendment during last week’s debate on H.R. 5, one Republican, Rep. Bob Goodlatte, asserted that the Supreme Court had already decided that there was no conflict, which was really a retreat to stare decisis. But most of the committee’s Republicans wouldn’t hesitate to override Supreme Court decisions counter to their views on abortion, prayer in public schools, and the “establishment of religion” clause. Movements like the Tea Party groups and the Tenth Amendment Center are all about overturning long-held political and judicial doctrines in favor of a return to Constitutional principles.
As long as H.R. 5 advances through the House, Republican leaders will be unable to claim that they’re intent on curbing the Commerce Clause and on restoring the primacy of the Bill of Rights.