Jeff-Jared-Paper-On-Federalism

The 3 Worst Court Cases

“Bad clause, bad clause.” No, I’m not scolding a dog, but the interstate commerce clause of the U.S. Constitution (1789) that the U.S. Supreme Court has used to justify massive government interference in the free market, way beyond what the Founders envisioned.

The Commerce Clause is at Article I, Section 8, Clause 3 of the US Constitution, which is online at: http://www.usconstitution.net/const.html.

Wickard v. Filburn (1942) might be the worst case in American history. The Supreme Court upheld price controls on wheat (during the Depression) and justified it by relying on the Commerce Clause. This clause gives the federal government power to regulate interstate commerce.

But to the Framers in 1789, the word “regulate” meant to “make regular,” not register, tax, license, price control and prohibit. Making regular merely means allowing commerce to cross state lines evenly and uniformly, without tax or tariff. It was meant to promote trade between the states, not restrict it. But not for this Roosevelt Court in 1942.

Wickard v. Filburn held that all commerce is inherently national, and thus, regulatable by the feds. Even home-grown wheat effects interstate commerce, according to Wickard. In Gonzales v. Raich (2005), the U.S. Supreme Court similarly held for home-grown marijuana in California, by ruling that the feds can ban cannabis even in states that have legalized it for medicinal purposes.

The 2nd worst case might be Home Building & Loan Ass’n v. Blaisdell (1934). This Depression era case killed contract rights. It allowed government to alter contracts between private parties. Blaisdell upheld laws modifying loan contracts to prevent mass foreclosures. This may also be happening today. But Article I, Section 10 of the Constitution says States shall not “impair the obligation of contract.” Not so after Blaisdell.

The 3rd worst case might be U.S. v. Miller (1939), where the Supreme Court killed state’s rights by holding that federal law controlled guns in a state, not state law.

But test cases may be working their way up to the U.S. Supreme Court to hopefully overturn these cases in the next decade restoring free markets and state’s rights.

 

Jeff E. Jared is a Kirkland resident and attorney.