The following was written in response to a local radio program’s recent show on what they call “constitution worship”.   Although I disagree with the hosts more often than not, it is a great show.  They have stimulating discussion over relevant issues, and do so in a very civil manner, rarely seen in today’s political pundents, and are very open to comments from opposing viewpoints.  You can find their website here, listen in the Iowa City area on KRUI 89.7 on Sunday from 4-5pm, or podcast their show by searching “American Reason” on iTunes, it is the first podcast and has their names: Matt and Vic.  I highly recommend checking them out.

As I understand it, the constitution was a legal agreement between the states and the proposed central federal government as to what the federal government’s role would be.  As such it is binding.  The enumerated powers tell us what the states, by ratifying the constitution, delegated to the federal government to do.   When you say that many things that we deal with these days, are not dealt with in the constitution, examples may include funding for retirement (social security) or health care (Medicare, Medicaid, health care reform act), I would argue that they are dealt with, in the 10th amendment.  These issues are reserved for the individual states to deal with.  If there is a pressing issue that requires the federal government to handle, and it can’t be handled appropriately by the individual states, then we have the amendment process, which has been used 27 times.  The amendment process allows states to vote on delegating more authority to the federal government, beyond what is currently authorized by their legal contract, the constitution. Yes it is slow, taking several years to accomplish, but it is the legal way the federal government is to go about doing things not yet authorized by the constitution. Instead of going about this legal way of amending the constitution, or contract, congress just passes laws in hopes that no one will complain, and if they do, the Supreme Court will use some kind of word twisting or precedent to claim that it is consistent with the constitution.  I am no lawyer, but I have a feeling if we were as loose in following civil contracts as the congress is in following the constitution, we would not be so lucky when we were taken to court over contract disputes.

I’ll give one quick example about how this plays out.  The enumerated powers contains the commerce clause, which is often used by the Supreme Court to justify many things the federal government does, it reads as follows:

The Congress shall have Power….To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

I personally don’t feel this gives the federal government to impose limits to the amount of crops an individual farmer can produce on their land, but that is just what they did in the Agriculture Adjustment Act of 1938, in an attempt to drive down the supply and drive up the price of wheat during the great depression.  I would call it a stretch, but Ok, whatever; surely they won’t go down the slippery slope even farther.  But they did.  A farmer in Ohio produced more than he was allowed and used the extra to feed his family and livestock.  The case went all the way to the Supreme Court as Wickard v. Filburn.

The court ruled that because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

I would argue that regulating what a man grows on his own land, for his own consumption, does not fall under the interstate commerce clause of the legal document we call the constitution.   This could be argued for wheat as well as marijuana (but that is a different show).  What this case has done is set precedent; this is now the legal standard to which further laws are judged, no longer by the original constitution.  If you were to ask the founding fathers if this was your intention when you wrote the commerce clause, I would think they would say no.  If you asked the original 13 state legislatures that ratified the constitution, or the 37 since that agreed to become states under the legal document that is the constitution, if this was their understanding of its power or roll, I think they would say no.  If you did what is proper and wrote an amendment saying that the federal government now has the roll of telling individuals what they can grow on their own land for their own consumption, I do not think it would be ratified by the number of states required to pass an amendment and delegate this power to the federal government.

So in closing, is the constitution perfect, absolutely not.  It had flaws and probably still has flaws.  But it is the legal document that dictates the relationship between the federal government and states. And as a legal document, should be amended when necessary, not ignored when inconvenient.

3 comments
  1. Wickard v Filburn was one of the most poorly decided cases in US Supreme Court history. I would recommend everyone read Mark Levin’s scholarly book, Men in Black to see how this and other cases have hurt us, including, what he believes was wrong about Bush v. Gore.

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