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ROWES: The two-faced Commerce Clause

Courts say Constitution grants broad powers to Congress - but not individuals

- The Washington Times - Thursday, June 23, 2011

The Obamacare lawsuits working their way to the Supreme Court are about more than whether Congress can force us to buy private health insurance. The nine justices will also have to decide whether Americans are free people or blind salamanders.

Five years ago, Floridian Brian Chisholm set up a corporation to run a funeral home in Maryland. But Maryland prohibits corporations from owning funeral homes, primarily to keep outsiders from the local market.

Mr. Chisholm sued in federal court because, under the Commerce Clause of the U.S. Constitution, America is a free-trade zone. Florida, for example, cannot protect Florida farmers by preventing Floridians from importing California oranges. Yet Mr. Chisholm lost after the court ruled that the Commerce Clause does not apply to money - only to physical goods, like oranges, crossing state lines.

But that decision cannot be squared with how courts view the flip side of the Commerce Clause coin. Under the Constitution, Congress has limited powers and every law must be based on a specific power. Since the 1940s, the Commerce Clause has become Congress' go-to power because virtually everything has a conceivable connection to interstate commerce. When Congress bans marijuana or bank fees, that's the Commerce Clause in action.

Federal courts let Congress call just about anything "interstate commerce," even subterranean amphibians. Ten years ago, a landowner tried to build near Austin, Texas. But the Texas blind salamander lives deep beneath his land. A federal court ruled that, under the Commerce Clause, the federal government could ban development, even though the salamander, which exists only in Texas, has never been bought or sold, much less traded as a "good" across state lines.

The contrast between Mr. Chisholm, the entrepreneurial American, and the Texas blind salamander exposes a profound flaw in how federal judges, particularly the Supreme Court, approach constitutional adjudication. When courts interpret the Commerce Clause to determine if a citizen has the freedom to act, then even money going across state lines is not interstate commerce. But when courts interpret the Commerce Clause to determine if Congress has the power to act, even salamanders in lightless grottos are part of interstate commerce.

This contradiction - and the explosive growth of government - stems from the failure of courts to enforce constitutional limits on authority. Supreme Court decisions tilt so decisively in favor of government that courts now exist mainly to rationalize the exercise of power. In economic and social matters, the Supreme Court upholds challenged laws on the basis of purely hypothetical justifications.

Obamacare depends on a rubber-stamp Supreme Court, one that will treat citizens like salamanders - deeming them part of interstate commerce even though they aren't doing anything, much less anything across state lines.

But judicial inactivism - better called judicial abdication - isn't compatible with liberty. Just as freedom depends on the Constitution, the Constitution depends on engaged judges who will enforce principled limits on government.

The Supreme Court and the lower courts must gather the courage to say no in defense of liberty. Otherwise, we will become what we deserve to be - a nation of blind salamanders.

Jeff Rowes is a senior lawyer at the Institute for Justice (IJ.org).

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