Over the past year or so, I’ve seen a lot of people proposing the amendments to the U.S. Constitution that they’d like to see, and that they think would make the world a better place. I have two.
So I’d propose:
Commerce between the several states shall be understood to mean: only commercial activity wherein some good or service is sold by one party to another party in exchange for money, other goods or services, or other valuable consideration; and only that commercial activity that is not conducted entirely in one state.
We need this because of an argument over 239 bushels of wheat.
In 1941, Roscoe Filburn planted 23 acres of wheat, in defiance of a New Deal quota system that only allowed him to plant 11.1 acres. He fed the excess wheat to his chickens.
The government argued that this was nevertheless interstate commerce (and thus regulable by the federal government), even though the wheat in question was never sold, and even though it never crossed a property line, much less a state line.
The government’s argument, simplified, was that had Filburn not grown this forbidden wheat and fed it to his chickens, he would have been obliged to buy chicken feed, and that had he bought this feed from another farmer in the same state, this would have in any case affected the market price for chicken feed, and thus have been interstate commerce.
Plainly, this is insane. The Supreme Court said:
Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
By this logic, anything is regulable as ‘interstate commerce’ (and, indeed, this is pretty much how the Congress has chosen to see things since the 1940s). The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. By that logic, the federal government could conceivably order you to take two baths a day, in order to stimulate trade in soap. They could order you to get up earlier, and so push up the market price of coffee. For that matter, they could dictate a specific breakfast menu to you, in order to favor the producers of eggs, bran muffins, bagels, orange juice, or whoever has spent the most money on lobbyists recently. This is utterly insane.
The Constitution, in Article I, Section 8, grants to the federal government the authority to regulate foreign commerce and commerce ‘among the several states’. If the real intention of the Founders was for commerce ‘among the several states’ to be anything, even activity that is neither ‘among the several states’ nor commercial, presumably they would have just said so.
So. Interstate commerce means interstate commerce, and not anything else. I expect that this amendment would mean a lot of vacant office space on K Street.
My second amendment is:
Having voted for, in the case of a member of the House of Representatives or of the Senate, or having signed, in the case of the President, any law later found by the Supreme Court to have been partly or wholly contrary to the provisions of the Constitution or any of its amendments, shall be cause for articles of impeachment to be brought against that person in the appropriate body.
In cases of impeachment brought under this article, a one-third vote in favor of impeachment shall be required for conviction.
The president and members of Congress all take oaths to uphold the Constitution. It has become very common, though, for them to see the determination of whether an action is or is not Constitutional as solely the Supreme Court’s job.
This amendment would basically require anyone thinking of voting for or signing an unconstitutional law to be pretty sure that their party would be significantly in the majority for the rest of his political career.