Veritas News – To Regulate Commerce among the Several States Part 2

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Veritas News Service Report

by Guest Columnist Johnathan Masullo


To Regulate Commerce among the Several States

Part II

In part I, we discovered that ‘regulate’ means ‘established regular mode or method.’ ‘Commerce’ means ‘exchange of commodities for commodities.’ ‘Among’ means ‘mingled or between.’ “To regulate commerce . . . among the several States,” therefore, means to establish a regular mode or method of exchange of commodities between the several States. We also learned that this power delegated to the Congress only applies to the external boundaries of the several States, not internally. The several States have jurisdiction to regulate commerce within their own boundaries. The Courts coincided with the original intent confirmed by the framers of the Constitution. In this final episode, we will see if the Courts seek to expand the jurisdiction of the General Government, in particular, the Congress to regulate commerce among the several States.

Before the author examines additional Court opinions, it is worth mentioning a man who would inflate the General Government that we see today. During the early nineteenth century, Mr. John Marshall (1755 – 1835) was the Chief Justice of the Supreme Court of the United States.[1] Mr. Marshall was a distinguished soldier, jurist, judge, and statesman. Mr. Marshall was also an active Freemason and he was described as “an enthusiastic Freemason.”[2] He became a Freemason during the War of Independence.[3] In 1786, he was appointed Deputy Grand Master at his local lodge in Richmond, Virginia.[4] In 1792, he was the Grand Master pro tempore at the Grand Lodge of Virginia.[5] In 1793, he was elected the Grand Master of the Grand Lodge of Virginia and, in 1794 he was re-elected.[6] Mr. Marshall served as Grand Master of the Grand Lodge of Virginia from 1793 to 1795.[7]

The legal profession would (and still) celebrates Mr. Marshall’s invasive interpretations of the Constitution.[8] In the following Court cases, Mr. Marshall delivered the Court opinions. In Gibbons v. Ogden, the Court said the following:

The subject to which the power is next applied is to commerce “among the several States.” The word “among” means “intermingled with.” A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one. . . .[T]he power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . The power of Congress, then, comprehends navigation, within the limits of every State in the Union, so far as that navigation may be in any manner connected with “commerce with foreign nations, or among the several States, or with the Indian tribes.”[9]

At first glance, the reader might say, “Well, the Court does not enlarge the delegated power per se. The Court says that nothing is intended to comprehend commerce that is completely internal.” That may be true; however, eventually it “may be introduced into the interior.” The decision of Gibbons v. Ogden infuriated many States’ rights supporters, especially Mr. Thomas Jefferson (1743 – 1826).

“In the last paragraph of his opinion, Marshall issued a pointed warning to outspoken states’ rights advocates like Jefferson and John Taylor. He conceded that ‘ingenious minds’ could, by the narrowest possible interpretation of the Constitution, drastically reduce the powers of the federal government. But to indulge in that ‘refined and metaphysical reasoning,’ Marshall wrote, would ‘explain away the Constitution of our country and leave it a magnificent structure to look at, but totally unfit for use.’ The Gibbons decision was especially discouraging to Jefferson. Not only had Chief Justice Marshall announced another stunning nationalistic decision, but Jefferson’s best hope for an independent voice on the Court, republican Justice William Johnson, wrote a concurring opinion that went even further than the Chief Justice describing Congress’s broad powers to regulate interstate commerce.”[10]

In Brown v. Maryland, the Court said, “What, then, is the just extent of a power to regulate commerce with foreign nations and among the several states? This question was considered in the case of Gibbons v. Ogden, 9 Wheat 1, in which it was declared to be complete in itself and to acknowledge no limitations other than are prescribed by the Constitution. The power is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior. . . . If this power reaches the interior of a state and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right not only to authorize importation but to authorize the importer to sell. . . . We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation as an inseparable incident is inevitable.”[11]

These two cases would pave the way that the Congressional power over commerce is exclusive. The fine line between interstate commerce and intrastate commerce will come to an end. The perversion of the Commerce Clause authorizes the Congress to justify virtually unlimited federal power over any activity within the several States. We see the negative effect of those two Court opinions 188 years ago. For example, federal agents raided a Pennsylvanian Amish dairy for the second time using the excuse that raw milk is not healthy and his raw milk products are sold in ‘interstate commerce.’[12] Another example is the Food and Drug Administration says “your own stem cells are drugs and stem cell therapy is interstate commerce because it affects the bottom line of FDA-approved drugs in other States.”[13]

On the positive side, there is a movement within the several States to bring back the original intent of the Commerce Clause. In 2010 approximately thirty-seven States filed lawsuits against the General Government over ObamaCare. The Attorney General of Virginia said, “At no time in our history has the government mandated its citizens buy a good or service.”[14] On the 26th of January, 2011, the Virginia House of Delegates passed House Bill No. 1438, which nullifies every federal regulation of economic activity that is entirely within the State.[15] Recent legislation in the States of Iowa, Florida, and New Hampshire confirms “the Constitution grants the federal government the power to regulate commerce among the several states, but the power to regulate intrastate commerce is reserved to the states or the people under the Ninth and Tenth Amendments.”[16] Nullification by means of Amendment X[17] is the way to curb the federal monster.

[1] Mr. Marshall was in office from 1801 to 1835. He currently holds the record of longest serving judgeship.

[2] Beveridge, Albert J. Beveridge. The Life of John Marshall. Vol. II. New York, NY: Houghton Mifflin Company, 1919. 176-177. Print.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Mr. Marshall’s famous case of expanding the General Government is Marbury v. Madison, 5 U.S. 137 (1803). In Marbury v. Madison, he said that the Supreme Court is the ultimate arbiter when interpreting the Constitution. Alas, that opinion still stands today. In fact, there is no delegated power to either department of government to interpret the Constitution. The framers of the Constitution feared that if one department of government had the power to interpret the Constitution, then it would hinder or expand the other two departments, in other words destroying the idea of ’separate but equal powers.’

[9] Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1 (1824)

[10] Simon, James F. What Kind of Nation. New York, NY: Simon & Schuster, 2002. 290. Print.

[11] Brown v. Maryland, 25 U.S. 419, 12 Wheat. 419 (1827)

[12] Huff, Ethan A. “Feds Raid Amish Dairy and Threaten Action Over Raw Milk Sales.” Natural News Network 30 Jul 2010. Web. 8 Mar. 2012. <>.

[13] “FDA’s New Claim: ‘Your Body Is a Drug—and We Have the Authority to Regulate It!’.” Alliance for Natural Health USA 31 Jan 2012. Web. 9 Mar. 2012. <>.

[14] Nolan, Jim. “Cuccinelli Says VA Will Sue Over Health-care Bill.” Richmond Times-Dispatch [Richmond] 22 Mar 2010. Web. 7 Mar. 2012. <>.

[15] Commonwealth of Virginia. House of Delegates. HB 1438. Richmond: General Assembly of Virginia, 2010. Web. < sum HB1438>.

[16] Maharrey, Mike. “Not Everything is ‘Interstate Commerce’.” Tenth Amendment Center 18 Jan 2012. Web. 8 Mar. 2012. <>.

[17] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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