As a strict constitutionalist I always ask the question "what is the federal governments standing" to regulate or exercise power when it passes a new law. I ask this regardless of my position on the particular law in question.
An example occured in the news today although the act of congress ocurred a long time ago. The Supreme Court ruled that states may not discriminate against out of state vintners in regulating mail order sale of wine. Although states may forbid the sales of wine by mail entirely, if they allow in-state vintners to sell by mail they must also allow out-of-state vintners to sell their wares by mail.
On first blush, this seems a no brainer. The constitution gives congress the sole authority to regulate interstate commerce. This was written into the constitution in order to preclude the states from implementing tariffs and import duties on out-of-state products. The founding fathers were wise enough to see how important a free and robust market would be to the growth of the nation.
Further investigation, however, muddies the water. In 1933, the 21st ammendment was ratified to repeal prohibition. It can be read that this ammendment, written by the congress, gave the states the power to regulate the importation of [wine]. By this act, congress has fullfilled its constitutional requirement to regulate interstate commerce. Or so it would seem except now the courts have said, no congress, while you may regulate interstate commerce, you may not do it this way. Hmmm. Now the courts are telling congress the methods it must use to perform its constitutional duties?
Of course, the courts have been strangely quiet (for the most part) on what interstate commerce is. The founding fathers, who were much smarter and wiser than any extant politico or judge, clearly thought of commerce as the exchange of goods and services in the market place. over the last 200 years the congress and the courts have decided that interstate commerce is whatever congress says it is. I suppose they could justify regulating how you make love to your spouse by saying that since bed sheets travel in interstate commerce, they have the power to regulate what happens on them. This is not a stretch or exageration. The nexus between laws and interstate commerce is far more strained than that in many instances and the courts have upheld many such absurdities. Virtually everything the federal government does today it does under its authority to regulate interstate commerce.
In order to rein in the federal government and return to our constitutional roots I therefore propose the following ammendment to the constitution:
ARTICLE XXVIII
An Ammendment to define Interstate Commerce
Section 1
The regulation of commerce among the several States (Interstate Commerce) which may be regulated by the Congress of the United States under Article I, Section 8, Clause 3 of this constitution, is hereby defined as the actual exchange of goods and services in the commercial market place with transactions occurring in two or more States. Interstate Commerce of any goods or services to be regulated ends with the last transaction involving two or more States.
Section 2
Retail or wholesale transactions within a State and not directly involving shipment or transactions between two or more States is not Interstate Commerce. This Section applies to goods and services even if such goods and services may have previously been in Interstate Commerce or which may be placed in Interstate Commerce in the future.
Section 3
Private exchanges of goods or services are not deemed to be in the commercial market and are not regulatable under Article 1, Section 8, Clause 3 of this Constitution.
Section 4
While financial services such as credit card services in and of themselves are regulatable as Interstate Commerce, the use of such regulatable services does not result in the goods or services being financed with such regulatable services to be regulatable as Interstate Commerce unless the transactions for the goods and services themselves are regulatable apart from the methods of payment or financing.
(end of proposed ammendment)
There you have it. The solution to most of the nations problems. The federal government would not be able to get involved in welfare or education or energy or any of the myriad things it gets involved with. The federal government could once again get back to doing the three important functions our founding fathers envisioned:
1. Defending the shores of the nation;
2. Delivering the mail, and;
3. Leaving the citizens alone...
