Answer to queries on 17th Amendment, 14th Amendment, Commerce Clause & the Roberts Opinion on the Taxing Power

(Q1) Is the 17th Amendment unconstitutional, due to the prohibition of anything violating state suffrage?

(A1) Deferred pending receipt of further information.

(Q2a) Was the 14th Amendment about the newly-freed slaves?

(A2a) Yes, that was its principal aim of §1 which I here set out: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

However, textually the 14th is not limited to slaves. Therefore it applies broadly to everyone coming within its provisions. I should also say that its enactment did not change the basic relation of the federal and state governments, each being sovereign in its own spheres.

(Q2b) And, is there a distinction between federal (14th Amd.) “citizen” and state “citizen?”

(A2b) Yes. The distinction lies in the recognition that after emancipation many former slaves migrated through and to other states, without staying or being in a state long enough to become residents and thus were “residents” of no state and consequently not “citizens” of any state.[1] Therefore, to provide privileges protection for migrant and migrating blacks (and other migrants), as well as protection for resident blacks (and other residents) it was necessary to guarantee the privileges to all United States citizens and not just to United States citizens who were also citizens of some state.

(Q3) What is your take on the Wickard vs. Filburn decision?

(A3) One of the all-time worst. From the treatise:

Perhaps, the best (or worst) example of commerce clause abuse is Wickard v. Filburn. Under the same Agricultural Adjustment Act, the secretary of agriculture set quotas for wheat production. Filburn grew small amounts of wheat on his farm for his livestock, seed, and home consumption. His allotment was 222 bushels, but he grew 461 and was fined $117. He sued to restrain the collection of the penalty on the grounds that the act exceeded congress’s commerce power.

The normally-sensible Mr. J. Robert Jackson took leave of his senses in the opinion, upholding the penalty with this reasoning:

Mr. J. Jackson: One of the primary purposes of the Act . . . was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies the needs of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.[2]

24aCoroner: With the logic of Mr. J. Jackson, in what one wag called the “ethereal flying bakery” case, there can be nothing that escapes federal commerce power and regulation. The janitor cleaning an office building is in interstate commerce[3], because the Pine Sol he uses crosses state lines. As I sit at my computer typing this sentence, I too have entered the stream of commerce,  for the coal that creates the electricity that powers the computer comes from outside Minnesota.

When my son works in our garage on his go-cart, he too is engaged in interstate commerce, for the aluminum in the socket wrench he uses was probably mined in Arkansas. My wife’s cooking is in interstate commerce, because if she wasn’t doing the cooking, we might go to MacDonald’s. By staying home instead, we are reducing MacDonald’s sales, and “overhanging” the fast food market, as Mr. J. Jackson might say.

§12.3 The real meaning of ‘commerce’: ‘commerce’ is trade which is the sale and purchase of merchandise

Coroner: The pre-Wickard view of the meaning and reach of interstate commerce was sensible. In United States v. E.C. Knight[4], which struck down the government’s attempt to set aside a sugar company’s acquisition of four competing refineries, the U.S. Supreme Court took a far different view of the stretch of commerce power, quite rightly saying,  “Commerce succeeds to manufacture, and is not part of it.” “It would be “far-reaching” to allow Congress to act “whenever interstate or international commerce may be ultimately affected.”

The supreme court of E.C. Knight was right; the supreme court of Wickard wrong. As Professor Raoul Berger has written, the court has used “the commerce clause as a shuttlecock that has been the toy of shifting majorities on the bench.”[5] Wickard, along with many other cases, plunged another dagger into the doctrine of enumerated power, already bleeding profusely from its near-mortal wounds in United States v. Butler[6] and Helvering v. Davis[7], both of which turned the Constitution’s general welfare clause into an abracadabra for expanding federal power.[8]

(Q4) Since Robert Jackson wrote the Wickard decision, and since Chief Justice John Roberts said that Jackson was his favorite Supreme Court justice (Karl Rove wrote about interviewing Roberts when Bush was going to fill the vacancy), is it reasonable to conclude that Roberts might have been a Trojan Horse, waiting for an opportunity to “change history” and got that opportunity via the National Federation (Obamacare mandate) case?

(A4) Unfortunately, yes.

From an article I wrote: “Chief Justice John Roberts and the Affordable Health Care Act: Both Anathema to the Constitution”:

“In his White House memoir, ‘Courage and Consequence,’ Karl Rove recalls being the lone non-lawyer among the group of George W. Bush aides who initially interviewed John Roberts for the Supreme Court in 2005. Rove asked Roberts to go back in history to name the justice whom he most revered. Roberts’ answer, Robert Jackson, intrigued and reassured Rove. When appointed in 1941, Jackson was serving as Franklin Roosevelt’s attorney general and had been expected to be a pro-New Deal rubber-stamp on the court. But, as Rove put it, Jackson ‘instead demonstrated a fidelity to the Constitution that Roberts admired.’” So writes Walter Shapiro @–how-does-george-w–bush-feel-right-now-.html

Jackson, it must be said, was mostly a rubber stamp for the New Deal. He was the author of the amazing Wickard v. Filburn, 317 U.S. 111 (1942) holding that home grown wheat that is all consumed on the farm is interstate commerce because it affects interstate commerce. For more on that monstrosity, see

In the ObamaCare case, writing for the majority, Roberts perhaps emulating his hero,  held (from the syllabus pp. 3-4):

“CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.”

“It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1 [the General Welfare Clause]. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v. California, 155 U. S. 648, 657, the question is whether it is ‘fairly possible’ to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31-32. 4. Pp. 33- 44” @

Despite Roberts embrace of the “general welfare” clause as a source of unlimited taxing power, the Founders regarded the clause not as a federal power but as a restraint on federal power. As Jefferson said and Madison agreed:

“[To construe the clause as providing a] distinct and independent power to do any act [congress] might please for the good of the Union . . . would render all the preceding and subsequent enumerations of power completely useless.  It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States . . . .  Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and  . . . without which, as means, those powers could not be carried into effect. (Emphasis added.)”

For more, please see THE GENERAL WELFARE CLAUSE: “How a Constitutional Restraint Was Transformed Into a Constitutional Power @

[1] Residency usually requires both physical presence and an intention of remaining for either a permanent or an undetermined period. Black’s Law Dictionary, 5th 1176.

[4], 156 U.S. 1 (1895) @ Oxford Companion: In the first case to arise under the Sherman Antitrust Act, United States v. E. C. Knight Co. (1895), the government attempted to dissolve a monopoly of sugar processing, charging the American Sugar Refining Company was illegally restraining trade across state lines. The fact that an article was manufactured for export to another state, said the Court, did not make it part of interstate commerce.

[5] Berger, Federalism, p. 62.

[8] SeePastoral Republican” @ “The General Welfare Clause: How a Constitutional Restraint Was Transformed Into a Constitutional Power”.

Published in: on October 23, 2013 at 12:16 pm  Leave a Comment  

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