The US commerce clause

In America, like Australia, the federal government has been intentionally mis-interpreting the constitution in order to take ever more powers from the State governments and the people. One of their main tricks is to mis-use the commerce clause. The intent of the clause was to prevent the different states of America from imposing trade restrictions on each other, but it is now used to regulate any activity of business. This extends to regulating growing of wheat on your own property for your own consumption. Reason TV tells the full story…

5 thoughts on “The US commerce clause

  1. Clearly Chemerinsky is being silly. If the interstate commerce clause gives Congress unlimited power, then the bill of rights ratifed after the constitution is invalid, as well as any further amendments or any preceding rights that were in the original version.

    As for Australia s 92 cl. 1:

    “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. ”

    The problems are the corporations power and the States have too much power with the “good Governance” clause which has been set hard in the Australia Act.

  2. To partly answer my own question I think mandatory 25 year sunset clauses on all legislation, unless 90% of parliament supports the law would be one measure. Repeal would of course only require 50% . If we keep the books free of illiberal laws then there is less chance that a constitutional challenge to a law will rock the foundation of the whole legal framework. And with less disruption judges don’t need to be as bold to strike down laws on constitutional grounds.

  3. I like the idea of sunset clauses on legislation.

    Another option is that the central government only has it’s power through the continuing consent of the lower levels of government. Specifically, if grants flowed from state to federal government (instead of the other way around) then states would easily be able to pressure the central government to do what they are told.

    Ultimately, I think the power will tend towards the level of government that controls the finances. Just after federation, taxing powers were 50/50 between federal & state. Today the federal government raises over 80% of all tax revenue.

  4. Yes I agree that a better system would entail the central government having zero tax powers. The EU comes close in this regard but I suspect they will ultimately find a way around the limitations. I wouldn’t even allow the central government to levy fines lest they turn them into De facto taxes. Or if they could levy fines the funds would need to flow direct to the state treasuries.

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