On the Intrastate Commerce Act

From the Maine Tenth Amendment Center:

Below is the written testimony submitted to Joint Standing Committee on Judiciary in regards to LD 1172, “An Act To Prohibit Enforcement of Federal Laws in Violation of the Constitution of the United States,” otherwise known as the Intrastate Commerce Act.

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Testimony of Chris Dixon (Maine Tenth Amendment Center) on LD 1172, “An Act To Prohibit Enforcement of Federal Laws in Violation of the Constitution of the United States” May 5, 2011

Senator Hastings, Representative Ness, and members of the Joint Standing Committee on Judiciary. My name is Chris Dixon and I live in Lisbon Falls, Maine. I am in favor of LD 1172.

The United States Constitution was written to replace the Articles of Confederation, which was generally held to be failing among the founding generation. It became understood that the absolute lack of a Federal Government would be counterproductive to a union of sovereign states, but at the same time, they also knew that the response should not be an all-powerful central government. Thus, there was a careful balance created where a list of enumerated powers were given and the States and the people would reserve the rest of the powers.

The Tenth Amendment states “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.” The powers delegated to the United States Government are found in Article 1, Section 8; Section 9 lists the limits on their powers, while Section 10 lists the powers prohibited to the States.

Clause 3 of Article 1, Section 8 states one of the powers of the government is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The power was granted to the Federal Government to regulate commerce crossing State lines to ensure quarreling did not occur among the several states and thus become problematic, as it had under the Articles of Confederation. James Madison, principal author of the Constitution, noted in a 1829 letter that “…it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.” The Commerce Clause did not, however, grant the Federal Government the power to regulate commerce within State lines.

One misconception that should be cleared up relates to Clause 18 of Article 1, Section 8, otherwise known as the Necessary And Proper Clause. It grants the United States the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This has often been cited as a loophole to endless Federal powers, but in all reality actually granted no new powers to the Federal Government. James Wilson, a Pennsylvania delegate to the Constitutional Convention, noted that the clause was “limited, and defined by the following, ‘for carrying into execution the foregoing powers.” As noted previously, the Federal Government was weak under the Articles of Confederation and had no given authority to carry out its powers. This clause fixed that problem, by granting the new government power to ensure proper execution of the enumerated powers, and nothing more.

The Supremacy Clause (Article 6, Section 2) states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Constitution and all Federal laws compliant with such, are supreme. Alexander Hamilton, who would later become the first Secretary of Treasury, would join Madison and future first Chief Justice of the Supreme Court John Jay in writing the Federalist Papers, a series of essays promoting ratification of the Constitution. It’s main objective was to explain the proposed document in detail, clearing up the many misconceptions surrounding it. In the Federalist No. 33, Hamilton said, in regards to the Supremacy Clause, that “it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” When the States ratified the Constitution, it was to be understood at only laws in compliance with the Constitution would be supreme.

The topic of who decides what is constitutional is a point of contention, but ultimately, as it should be, it is left to the people. It would be a contradiction of American principles for the final power to lie not with the people, but rather with nine unelected lifetime lawyers. In an 1804 letter to Abigail Adams, Thomas Jefferson, principal author of the Declaration of Independence, noted that “…the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.” Jefferson would later add in an 1820 letter, “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.” It was understood by the founders that there were three equal branches, which were limited to their own sphere, but not one super branch and two sub branches.

Nullification is the answer, as Jefferson and Madison would first do in 1798 in response to the Alien and Sedition Acts, with the Kentucky And Virginia Resolutions. Another famous instance was in the 1850s, when Northern states refused to enforce the federal Fugitive Slave Laws, which stated all runaway slaves had to be returned to their owners if found. More recently, at least a half of the States in the Union, led by Maine in 2007, had moved to oppose the REAL ID Act of 2005.

LD 1172 would be another notable instance. Not only would it help attempt to restore the way government operates to a more efficient standard, it would also help Maine’s economy significantly by allowing local commerce to function without interference from people faraway. Who knows better for Maine than Maine?

As shown here, it is not an idea that was held to be radical upon ratification, and it was understood by the States that this would be of the many powers reserved to themselves.

I strongly support this legislation and I respectfully encourage the honorable members of the committee to allow LD 1172 to go before the Legislature.