Rape,
Slavery, Booze, and Interstate Commerce
The
U.S. Supreme Court created a mild panic among liberals when it ruled,
a few weeks ago, that the Commerce Clause of the Constitution is
finite. In striking down the Violence Against Women Act, which authorized
women to sue their rapists in federal courts, a narrow majority
of the Court took the reactionary radical right-wing position that
rape is not a form of interstate commerce.
Four
members of the Court, the dogged liberals, said it was too, even
if the victim isn’t lying across the state line. Why? Because for
liberals, nearly every known human activity qualifies as interstate
commerce and is thus subject to federal control.
One
angry critic of the ruling is Peter Shane, professor of law at the
University of Pittsburgh: "Yes, it is common sense that rape
is not commerce. But it is hardly common sense that Congress’s power
to promote commerce is so limited that it cannot legislate against
a practice that costs the national economy billions of dollars annually,
including the burdens of absenteeism and lost productivity."
Since rape victims often miss work, you see, rape "costs the
national economy billions of dollars annually" (Mr. Shane gives
no source for this figure, if it matters); ergo rape falls within
the scope of "interstate commerce." That’s "common
sense"!
To
start at the beginning, the Constitution says tersely that "Congress
shall have power ... to regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes."
Since the New Deal, the four words "among the several States"
have been expanded to comprehensive, virtually socialist dimensions.
The Court once ruled that a farmer who raised grain on his own land
to feed his own cattle was subject to the interstate commerce power!
Now
it stands to reason that if the phrase "among the several States"
was meant to create a power of such breadth as to nullify, in effect,
the rest of a Constitution of limited powers, someone would have
noticed it before the era of Franklin Roosevelt. The Framers of
the Constitution, the Federalists, and especially the anti-Federalists
would certainly have called attention to it. But nobody suspected
that it meant what today’s liberals insist it means.
Certainly
Abraham Lincoln never suspected it. He hated slavery, and the huge
slave trade would fit the category of interstate commerce, even
by liberal standards, better than rape or raising cattle. Why didn’t
he argue, at the very least, that the federal government could outlaw
slavery "among the several States"? On the contrary, he
conceded in his first inaugural address that the federal government
had no power to touch slavery where it already existed! Even when
he issued the Emancipation Proclamation, he justified it as an executive
war measure but still acknowledged that Congress had no legislative
power to enact it. (And the Proclamation applied only to the seceding
states, not to the slave states that remained within the Union.)
It took a constitutional amendment to outlaw slavery throughout
the United States.
The
same was true of liquor. The liquor industry was certainly a form
of commerce "among the several States," but everyone understood
that it could be prohibited only if the Constitution was amended.
So the Eighteenth Amendment was adopted, giving Congress the power
to ban liquor sales. Why should that have been necessary, if the
power to "regulate Commerce ... among the several States"
was comprehensive? Obviously nobody thought that power was broad
enough to permit Prohibition by mere act of Congress. Why amend
the Constitution to authorize Congress to do what it was already
authorized to do?
By
the same token, the repeal of the Eighteenth Amendment by the Twenty-first
Amendment should have made no real constitutional difference. Under
the broad reading of the power to regulate interstate commerce,
Congress can still ban all liquor sales if it wants to.
Some
people don’t mind a little constitutional sophistry in a good cause;
and for liberals, centralizing all power in the federal government
is always a good cause. Since most Americans don’t know or care
what the Constitution says, let alone what their ancestors thought
it meant, the great liberal snow job has been very successful.
June
21, 2000
Copyright
© 2000 by the Griffin Internet Syndicate. All rights reserved.
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