THE MOST IMPORTANT WORD IN THE CONSTITUTION
What word with its cognates do you see these statements in the US Constitution having in common?
Article I, Section 8, Clause 3:
"(The Congress shall have power) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
Article I, Section 8, Clause 5:
"(The Congress shall have power) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures"
Article I, Section 9, Clause 6:
"No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."
Amendment 2:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The word is regulate, and it is the single most important word in our government’s founding document to understand – for the entire edifice of the modern liberal administrative state is built on the willfully perverse misinterpretation of this one word.
The meaning of this word is the hill on which to make our stand for recovering our American birthright of freedom. The good news is that the cavalry is on its way to rescue us from the forces of fascism – and it’s led not by John Wayne but by a 63 year-old black man.
Don’t you love Providence’s sense of humor?
The English word regulate originates from the ancient Proto-Indo-European word reg, to move in a straight line. In Latin this became regere, to keep straight. This in turn devolved into two meanings: to guide or govern, and to make uniform or regular.
These two related meanings were maintained in English until modern liberalism. The reference work with which all America’s Founders were familiar was Samuel Johnson’s Dictionary of the English Language, published in 1755. Johnson defines regulate as: 1. To adjust by rule or method. 2. To direct.
(Note Johnson’s quote of England’s Poet Laureate John Dryden, 1631-1700, as an example of #2: Even goddesses are women, and no wife has power to regulate her husband’s life. Both Johnson and Dryden are expressing fantasy, not reality.)
For the Constitution’s authors, regulate means adjusting or directing an activity in order to make it uniform and regular. Again, however, there is that dual meaning, adjust or direct, the latter implying the power to prohibit or control.
This dual meaning is clearly expressed in the Commerce Clause. In the other three constitutional statements cited above, there is no duality at all:
To regulate the value of money means to make its value uniform and regular throughout the country; that no preference shall be given to any state over another regarding any regulation of commerce is again to make such regulations uniform and regular; a well regulated militia is one that is properly maintained, obviously not prohibited.
The dual meaning of regulate in the Commerce Clause reflects the dual purpose of the Federal Government being formed by the Founders: it was to form a "more perfect union" than existed under the Articles of Confederation, in order to insure domestic tranquility – and to protect that union as a whole from foreign powers by providing a common defense.
One of the great flaws in the Articles necessitating their replacement by the Constitution was that they allowed the various states to set up tariffs and tax barriers between them. Under the Articles in the 1780s, trade wars between the states were economically ruinous. Connecticut and Massachusetts, for example, were taxing each other’s imports to the moon.
Thus the purpose of the Interstate section of the Commerce Clause, giving Congress the enumerated power to "regulate commerce among the states," was to make trade between them uniform and regular, disallowing any tariff or tax barriers between them.
This established post-Constitutional America as a free trade zone in its entirety, enabling any product produced in one state to be bought in another state tax and duty free.
At the same time as the interstate trade wars were blossoming in the 1780s, a spiteful Britain was determined to use trade policy to damage its former colonies. It flooded them with cheap British manufactures undercutting American goods, while charging exorbitantly high duties on American imports.
Thus the purpose of the Foreign Commerce section of the Commerce Clause, giving Congress the enumerated power to "regulate commerce with foreign nations," was to curtail predatory trade practices of foreign powers such as Britain.
The purpose of both the Interstate and Foreign Commerce sections was to protect the states from being predatory upon each other, and protect the union of them all from trade predation by other countries.
The purpose was clear but the duality of regulate remained, which continued to nag at the Constitution’s primary author, James Madison (1751-1836). He made this clear in a letter he wrote to his friend Joseph Cabell in 1829 (emphasis added):
"For a like reason, I made no reference to the ‘power to regulate commerce among the several States.’ I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections.
"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, 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."
For over 150 years, the Supreme Court kept to this original meaning of the Interstate Commerce Clause. As Supreme Court Chief Justice Rehnquist explained in United States v. Lopez (1995), until 1887, "the Court’s Commerce Clause decisions dealt but rarely with the extent of Congress’ power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce."
When cases regarding the 1887 Interstate Commerce Act and the 1890 Sherman Anti-Trust Act arrived at the Court, "we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as ‘production,’ ‘manufacturing, and ‘mining’."
This position continued to be upheld by the Court until in 1937 it submitted to FDR’s threat to "pack" it with enough judges who would vote the way he wanted. The result was the tortured trashing of the Commerce Clause’s plain meaning in such decisions as Wickard v. Filburn (1941), which ruled that the federal government could tell a farmer how much wheat he could grow on his own land for his own use.
The justification was that somehow the farmer’s wheat for his own use had a "substantial effect on interstate commerce" (i.e., the what-if-everybody-did-that? excuse).
Believe it or not, that 1995 United States v. Lopez decision was the first time since the 1930s that the Supreme Court restrained in any way the federalies’ power to rule our lives via the liberal interpretation of the Commerce Clause.
In that ruling, Justice Clarence Thomas wrote a separate consenting opinion. He states that the "substantial effects" doctrine "if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life."
It is just this police power, the unlimited authority of the federal government to control everything we do, that is the goal, indeed the achievement of modern liberalism. That’s why that bastion of liberalism, The Washington Post condemns any "narrow" view of Congress’s power to regulate interstate commerce – for this power is "the constitutional backbone of the modern regulatory state."
Get that? The liberal interpretation of the meaning of the word regulate is "the constitutional backbone of the modern regulatory state."
The time has come to snap that backbone in two. Justice Thomas makes it clear in Lopez that the substantial effects doctrine is a usurpation of the Constitution:
"I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century."
This innovation, Thomas concludes, resulted in the Court making a "wrong turn… a dramatic departure in the 1930’s from a century and a half of precedent."
I am quoting Thomas’ Lopez opinion (which is worth reading entire) because the liberal establishment is waking up to the threat he is to their "modern regulatory state."
This week (8/29), Jeffrey Toobin, the legal affairs writer for New Yorker, published a remarkable analysis of Thomas as "the intellectual leader of the Supreme Court." It’s entitled Partners – and it’s got the libs in a real tizzy. Read it and see why. E.g.:
"The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society."
What’s got the libs freaking is that Thomas is going to lead the Court into declaring ObamaCare unconstitutional via the original meaning of regulate in the Commerce Clause – and start the dismantling of the administrative state. After all, the constitutional rationale given for ObamaCare and the individual mandate is their meaning, the Wickard meaning, of regulate.
Synergizing their fear is Rick Perry. The combination of a President Perry promising to eliminate as much as he can via Executive Order of ObamaCare, the EPA, the Endangered Species Act – it’s a long list of federal abominations – and appointing originalists to the Supreme Court solidifying Thomas’ leadership, well, that’s just too much for the libs to bear.
It will be the end of their Soviet rule over the federal government and their imposition of their version of the Brezhnev Doctrine upon us.
Leonid Brezhnev was the Chief Commie of the Soviet Union from 1964 to his death in 1982. A principle of his foreign policy was that once the Soviets colonized a country, it had to stay that way. The Soviets could make continual advances against the West, but never vice versa.
Ronald Reagan summarized the Brezhnev Doctrine as the Kremlin saying, "What’s mine is mine and what’s yours is negotiable."
For all our lives, the libs have claimed that history only goes one way – their way. Any questioning of their rules and status quo is "going backwards." We never get to question their lib precedents which overthrew conservative precedents. We never get to advance freedom and less government. They always get to advance more rules and more government. And for all our lives, we’ve lived on their one-way street.
No more. The coming SCOTUS overthrow of ObamaCare is the start, just the start, of history going our way again. For with the original meaning of regulate ensconced once again, the Court can then start cutting the federal monster down to constitutional size via the 10th Amendment.
In this, it will be aided and abetted by a Perry Justice Department – for Perry’s main theme, the theme of his book Fed Up!, is a federal government limited to its enumerated powers via the 10th.
The combo of a Perry White House, a Republican Senate & House, and a Roberts-Thomas originalist Court is going to give us our freedom and our country back. And it all begins with understanding the meaning of that one word that can break the spine of fascist liberalism.