Constitutional Law: Founding Fathers Principles on the Commerce Clause

Exclusive: The Tea Party has been fueled by the idea that key Founders, like James Madison, opposed a strong central government and thus laws like “Obamacare” are unconstitutional. But Madison was the framer who devised the Commerce Clause upon which health-care and other reforms are based, notes Robert Parry.

By Robert Parry

One has to hand it to the American Right. It has invested so heavily in its falsification of U.S. history – and in its propaganda machinery – that it can convince millions of Americans that up is down. A case in point is the notion that James Madison, “the father of the Constitution,” opposed a strong central government in favor of a system of states’ rights.

The fact that Madison orchestrated American history’s greatest single shift of power into the hands of the central government and, conversely, away from the states, i.e. the U.S. Constitution, is transformed into its opposite by taking a few of Madison’s words out of context and ignoring what he actually did and why.

So, the Right seizes on Madison’s efforts during the ratification of the Constitution to play down how radical a transformation he engineered, while ignoring his long record of decrying the Articles of Confederation for their weak central government. The Right also doesn’t mention Madison’s proud promotion of the Commerce Clause and other important federal powers.

It is problematic indeed that Madison, the Right’s new Tea Party icon, was actually the key advocate of the Commerce Clause, which gave the federal government broad powers to regulate interstate commerce and has served as the basis for programs as diverse as Franklin Roosevelt’s New Deal, Dwight Eisenhower’s federal highway system and Barack Obama’s health-care reform.

But the Right’s insistence that such programs are “unconstitutional” – and that Madison supposedly would agree with that argument – has proved useful in convincing many ill-informed Tea Partiers to dress up in Revolutionary War costumes and channel the Founders’ presumed hostility toward a strong federal government.

Madison’s Commerce Reform

Yet, the Right’s mangling of this history ignores such facts as Madison’s efforts under the Articles of Confederation, which governed the United States from 1777 to 1787, to get the states to relinquish control over national commerce to the federal government.

For instance, Madison “sponsored a resolution instructing Virginia congressmen to vote to give the federal government the authority to regulate commerce for twenty-five years,” wrote Chris DeRose in Founding Rivals.

Madison’s resolution won the support of Gen. George Washington, who was one of the fiercest critics of the weak central government under the Articles of Confederation because he had seen how the system of 13 “independent” states had left his soldiers starving and desperate, without supplies and pay, and nearly led to a mutiny by Continental Army officers marching on Congress in Philadelphia.

Washington wrote to Madison, saying “The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

When the Virginia legislature slashed Madison’s proposal from 25 years to 13 years, he voted against it as insufficient. His thoughts then turned to a more drastic scheme for consolidating power in the hands of the federal government, a constitutional convention.

On Dec. 9, 1785, Madison wrote to fellow Virginian James Monroe that “It is more probable that the other idea of a convention of commissioners from the states for deliberating on the state of commerce and the degree of power which ought to be lodged in Congress, will be attempted.” [See DeRose’s Founding Rivals.]

When that day arrived in spring 1787 – with a convention called in Philadelphia to amend the Articles of Confederation – Madison unveiled his radical alternative, not simply some modifications to the Articles but an entirely new system that wiped away the Articles’ language about the “independence” and “sovereignty” of the states.

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, a fellow Virginian, Edmund Randolph, presented Madison’s framework. Madison’s Commerce Clause was there from the start, except that instead of a 25-year grant of federal authority, the central government’s control of interstate commerce would be permanent.

Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”

In other words, the Founders – at their most “originalist” moment – understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point in teaching materials as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

Contention and Compromise

Through the hot summer of 1787, the Convention delegates debated Madison’s plan, amid the give-and-take of compromise, generally reining in some of Madison’s most radical ideas. Contrary to the Right’s current propaganda, Madison actually favored even a more powerful central government than the Convention eventually adopted.

Madison wanted Congress to have veto power over state laws, a provision that was dropped though federal statutes and treaties were made “the supreme law of the land” and thus federal courts could strike down state laws that were deemed in violation.

“Madison wanted the federal assembly to have a veto over the state assemblies,” wrote David Wootton, author ofThe Essential Federalist and Anti-Federalist Papers. “Vetoes, however, are bad politics, and again and again they had to be abandoned in the course of turning drafts into agreed texts.”

Despite such concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power – a reality not lost on some influential politicians who favored a continuation of the states’ “independence” and “sovereignty” that were explicitly recognized by the Articles of Confederation, but which disappeared in the Constitution.

Anti-Federalists correctly recognized what had happened and soon rallied strong opposition to the new governing framework. As dissidents from the Pennsylvania delegation wrote:

“We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.” [For details, see Consortiumnews.com’s “The Right’s Inside-Out Constitution.”]

Tamping Down the Fire

As resistance to Madison’s federal power-grab spread – and as states elected delegates to ratifying conventions – Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison – along with Alexander Hamilton and John Jay – began a series of essays, called the Federalist Papers, designed to counter the fierce (though generally accurate) attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers.

To make the case that Madison was an opponent of a strong central government, today’s Right is fond of citing Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” in which Madison used the pseudonym Publius.

Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.

“The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

What the Right ignores, however, is the context of Madison’s comments as he sought to tamp down the fiery opposition to the Constitution. As a skilled politician, he was engaging in the age-old practice of finessing one’s opponent. After all, if Madison really thought the Articles only needed a few tweaks, why would he have insisted on throwing them out altogether? Plus, replacing toothless powers with ones with real teeth is not some inconsequential change.

Under the Constitution, for instance, printing money became the exclusive purview of the federal government, not a minor change. And, stripping the states of their “sovereignty” and “independence” meant they would not be free to secede from the Union, a very important change that the South would challenge in the Civil War.

Touting the Commerce Clause

But today’s Right leaves out all this history in pursuit of a propaganda theme. The Right also ignores Madison’s comments in Federalist Paper No. 45 about the Commerce Clause, which he acknowledges is a new power for the central government, although one that, he said, “few oppose, and from which no apprehensions are entertained.”

Why the Right ignores this inconvenient truth should be obvious: it destroys the entire argument that Madison was a modern-day Tea Partier ahead of his time. To the Right, the Commerce Clause is the bête noire of the U.S. Constitution, yet here is Madison noting its broad support among Americans who didn’t have to go to a costume shop to buy their tri-corner hats.

To cite Madison as an opponent of an activist federal government, the Right also must ignore Federalist Paper No. 14 in which Madison envisioned major construction projects under the powers granted by the Commerce Clause.

“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

What Madison is demonstrating in that essay is a core reality about the Founders – that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18^th Century.

But today’s Right will never accept facts and reason if they go against a desired propaganda theme. After all, the value in the Right having spent billions of dollars in building a vast media infrastructure is that the same bogus arguments can simply be repeated over and over. Indeed, that’s how many right-wing operatives earn a living.

So, the real history gets discredited by calling it “liberal” or by repeating the same out-of-context quote again and again. But serious conservative scholars of the Constitution understand the document’s true purpose even if they sometimes disagree with a specific act of Congress.

Silberman’s Opinion

For instance, it’s worth noting the legal opinion written by conservative U.S. Appeals Court senior judge Laurence Silberman in affirming the constitutionality of the Affordable Care Act, often called “Obamacare.”

On Nov. 8, 2011, Silberman, an appointee of President Ronald Reagan, explained how the law – including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage – fit with the Commerce Clause and prior legal precedents.

“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).

“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existingcommerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

Silberman’s opinion also examined decades of Supreme Court precedents that affirmed the power of Congress to establish regulations over various national markets.

“Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.

Neither limitation applied to the health-care law, Silberman noted, because medical insurance was clearly an economic activity and surely had sizable interstate implications.

As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.

Congressional Powers

Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as “substantial effects.”

“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.

“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. …

“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.

“Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”

Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”

He noted that since those challenging the health-care law “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the [individual] mandate and the lack of a limiting principle,” i.e. some example of when the government could not require citizens to purchase a specific product.

Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds,” but added that “we are obliged – and this might well be our most important consideration – to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”

Individual Mandate

Silberman also addressed the core political objection to the health-reform law, its supposed intrusion on individual liberty. He wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.”

He added: “It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.”

So, even a very conservative legal scholar examining the Constitution and precedents could not find a convincing argument to overturn “Obamacare” – and that is because the Founders intentionally and broadly empowered Congress to address national economic problems through the Commerce Clause.

In his later years as a political leader, Madison – like other framers of the Constitution – did switch sides in debates over the specific boundaries of appropriate federal power.

For instance, Madison joined with Thomas Jefferson in opposing Hamilton’s national bank, but then as Jefferson’s secretary of state, Madison applied an expansive view of national authority in negotiating the Louisiana Purchase from France. Madison also shifted regarding the value of the national bank after his frustrating experiences as president during the War of 1812.

But there should be no serious dispute over Madison’s greatest accomplishment, supplanting the states’ rights framework of the Articles of Confederation with the strong central government of the U.S. Constitution.

And, as much as Madison is regarded as “the father of the Constitution,” he also deserves to be known as “the father of the Commerce Clause.” But don’t expect today’s Right to acknowledge the fact.