Commerce Clause Contradictions

Assigned Reading: Health Care Reform and the Constitution
(FROM: The Wall Street Journal)

A great piece of writing from the Hon. Andrew Napolitano in yesterday’s Wall Street Journal. I just saw it now. And while I’m sure many of you have already seen it, I wanted to be positive.

Here’s an excerpt, but please read the whole thing. The part about South Carolina Congressman Jim Clyburn is precious.

[I]t’s clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined “to keep regular” the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That’s right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person’s appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with “free” health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren’t upholding the Constitution—they are evading it.

As far as I can tell, the only possible defense available to the Democrats should someone of consequence actually press them about the constitutionality of health care reform would be found in the Necessary and Proper Clause of Article 1, Section 8, a clause which the federal government has been known to pervert in the past.

Even that would be suspect, though. Chief Justice John Marshall wrote in McCullough v. Maryland that if “the end [is] legitimate,” if it is “within the scope of the Constitution,” then “all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Even if the Democrats choose to pull the Necessary and Proper lever, I still don’t believe that health care reform is consistent with the letter and spirit of the Constitution.

But take Judge Napolitano’s word for it, not mine. That man has more legal knowledge in his pinky fingernail than I ever will in my entire body.



  1. Rix says:

    Our Constitution is long on wisdom but, nlike statute law, awfully short on concrete remedies. At this point, it is clear to anyone with a brain and a pair of eyes that the Congress has far surpassed the constitutional authority; the problem is how to deliver the proverbial slap on the wrist.

    Peaceful protests, meetings and demonstrations do not work. A million or so people took the pains of coming to D.C. on their dime to "show them", just to have "them" completely disregard the event.

    Elections do not work as changing one collections of rats and weasels for another, equally corrupt collection does not amount to any relief. Also, elections have become way too easy to rig and manipulate.

    Violence does not work for a number of reasons. Some are averse to it out of respect for human life, while others are too soft-bellied to extract (and pay) the blood cost. Many are also concerned with the disruption it may cause to already-damaged economy.

    Scared into blind obedience, we stubbornly refuse to grasp for an obvious solution. Our money extracted from our pockets as taxes are the lifeline we extend to the Big Government monster; as soon as that lifeline is withdrawn, the monster will shrink to the limits intended for it by the Founders' design. Starve the beast!

    "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."
    — Thomas Jefferson

  2. Linda says:

    Doesn't this sum it up right here: "The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for."

    One concise sentence wraps explains it all.

  3. Anonymous says:
  4. Bob Greenslade says:

    Based on the comments of the Founders, the purpose of the words “to regulate commerce…among the several States” was to insure the free passage of goods between the individual States.

    During the debates in the Federal [Constitutional] Convention of 1787 on this provision, Oliver Ellsworth stated:

    "The power of regulating trade between the States will protect them against each other."

    James Madison reiterated this point in the Convention as follows:

    "[P]erhaps the best guard against an abuse of the power of the States on this subject, was the right in the General Government to regulate trade between State and State."

    The Commerce Clause granted Congress the power to make regular, or normalize, commerce between individual State and individual State. It did not grant Congress the power to control individuals or private business engaged in commerce. This fact is substantiated by the 13th Amendment passed in 1865 (banning slavery), the 18th Amendment passed in 1919 (banning intoxicating liquors), and the 21st Amendment passed in 1933 (repealing the ban on intoxicating liquors). All of these amendments involved commerce, yet Congress realized that it took a constitutional amendment before it had the power to legislate in these areas.

    On October 29, 1993, Attorney General Janet Reno, in response to Hillary Clinton’s health care proposal, issued a written opinion [] concerning health care and the Commerce Clause. Her opinion endorsed federal usurpation of power through this Clause.

    Even if this Clause granted the federal government the broad power it now asserts, Congress cannot use this Clause to compel someone to engage in interstate commerce. By the same token, Congress cannot negate the right of contract by forcing someone to engage in a contract under the banner of regulating interstate commerce.

  5. Gail B says:

    We do not need the federal government fouling up our healthcare industry; where we need them to screw up is tort reform. That can't get much worse than it already is, and they have a 50/50 chance of improving it and cutting health care costs! (Heavens! An even chance for Congress to actually do something right for a change!)

    Good eye, Jeff–thanks for this one.

  6. Anonymous says:


    It'll help show the historical usage of the phrases.


  7. goddessdivine says:

    I've often wondered why no one has brought up the constitutionality of this bill. To claim healthcare as a "right" is to claim a right to the services of the health-care provider. In effect, this means you are claiming a "right" to a portion of that person's life–both a portion of the time already spent developing his skills, and a portion of the time spent practicing those skills on you as the patient. How can that be constitutional?

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