16 Simple Words

by Dale Cooper

16 simple words: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Those few words comprise what’s known as the Commerce clause of the U.S. Constitution. That’s it. That’s all that’s written.

Though it might be hard to believe, the misuse of those few words usurped the sovereignty of several states, not to mention the birthright of their liberty-loving citizens, a birthright won with blood.

Ink and clever lawyers accomplished the coup. How? Welcome to the wacky world of Alice in Wonderland constitutional law.

First, read those 16 words again. Okay. Now figure out a way to use them to justify the following event:

The federal government (the one in which the power to regulate Commerce resides) orders a small mid-west farmer, under threat of force, to stop growing wheat on his own farm, for his own use, in his own community. His wheat crosses no state line, or for that matter, any county line.

How is this possible? Well, the feds used 6 of those 16 words (regulate Commerce… among the several States) to assert its constitutional authority to dictate to the farmer what he could or couldn’t do with his wheat.

You see the feds took control of the farmer’s wheat because, although small in size, it would cause a ripple in the ocean of wheat grown in, and traded among the several States and was therefore subject to federal regulation via the Commerce clause (our infamous 16 words).

Never mind that all this took place within the boundaries of a state, the sovereignty of which was guaranteed by that same constitution. A state that had the power to regulate its own internal affairs (see the Bill of Rights, 10th amendment). But control of wheat was important to the government. More important than any single state’s claim to sole jurisdiction over the matter. And it wasn’t going to let four words stand in its way (among the several states). No way!

Here’s another example for you to think about …

Agents of the federal government broke into the home of a terminally ill, old woman whose doctor under the laws of his state, prescribed medical marijuana to relieve granny’s suffering. The feds then busted her for growing marijuana, even though the old gal grew the crop exclusively for her exclusive personal use. She didn’t buy it, sell it, or otherwise distribute it. But under its power to regulate Commerce … among the several states the feds took her pot.

How could anybody take the words among the several states to mean within a single state? How could one even use the word Commerce in connection with something that isn’t bought, sold or traded, which is how most people with an IQ greater than a single digit would define that word? Never mind. It’s Commerce. The government says it is, and that’s that.

If you think that story can’t be topped, try this on for size …

Using those same 6 words, the political class in DC recently decided it could force people to purchase something that they didn’t want. A health insurance policy.

How could that be? Well, you see not buying something is an activity. Since when? Since the government defined not doing something as doing something. So now, in a very real way, the government has assumed the power to regulate almost anything you or I do, or for that matter, don’t do.

How’s that for Alice in Wonderland?

Of course some might quibble that these examples aren’t acts of regulation, but rather commands or decrees or some such other ridiculous thing. Others might even call them tyrannical and be roused to violent undertakings. But they’d be wrong because the federal government says it’s just regulating Commerce. And, of course, you can always trust the feds, can’t you?

Just who is the government? They used to say it was you and me, but now we’d have to say that it’s the unholy trinity of the Congress, the U.S. President and the Supreme Court.

How did this come to pass? It was as easy as boiling a frog. You drop the pitiful creature in a kettle of water, gradually turn up the heat, and bingo! before anyone knows it, the frog is ready to eat.

Same thing with the Commerce clause. During the Depression, a president called FDR had a showdown with the Supreme Court. Prior to the confrontation, the court was inclined to rule differently in cases like that of the poor wheat farmer. After all, he hadn’t violated those 16 words, at least the way most of us would read them.

And as to the claim that his wheat caused ripples in the national wheat market, some of the justices may even have called that crazy; that it would be like arresting someone playing a kazoo in Kansas for noise pollution in Manhattan.

Of course on its face it’s absurd. But FDR had his showdown with the court. After that, the court went out of its way to view his opinions favorably.

When the court backed down, its ruling set a precedent for all future courts, which they were obliged to use from that point on. Sometimes the court admits that old rulings such as these were so glaringly wrong that it actually re-visits and re-defines those cases. But that’s pretty rare … only a few in a Century.

This was where the words of the Constitution first got so twisted and distorted as to defy reason. It got that way because those pulling the levers of government discovered a foolproof way of getting around annoying inconveniences like words.

It’s why the feds do things like kick-in the door of a little old lady in southern California, or interpret not doing something as an activity (which is kind of like saying not thinking is actually thinking of something, just nothing in particular … consequently you’d be well advised to watch out for what you’re not thinking).

Now, because of opinions issued generations ago by judges who kowtowed to an overbearing president, the meaning of 6 of those 16 words trumps everything … the dictionary, common usage and common sense. Like I said, welcome to Alice in Wonderland!

Which brings us to the present. We’ll now all be forced to engage in a form commerce, because not doing so is an activity that the federal government can regulate. So you must purchase health insurance if you don’t want to be an outlaw … literally. You can fume and fuss all you want about it, but you’re just going to have to live with it. After all, the words, as defined by the feds, say so!

If that makes you nervous, just imagine what they could do with the Constitution’s remaining 4,424 words! Why it’s absolutely wondrous and mystifying to contemplate!

That’s why this next session of the Supremes will be seminal. Unless the current crop of justices belly-up to the bar and start a process to correct these rhetorical machinations, I’m afraid we’ll be in some sort of semantic black hole from which we’ll never escape.

Perhaps our only recourse is to re-introduce the original meaning of Commerce to our vocabularies. In ancient days the word meant sexual intercourse, and in an ironic sort of way we’ve come full circle, for nowadays, linguistically, we’ve all been commerced.