Let’s make a deal. I am a private entity and you are a private entity. Can our transaction ever be called Commerce among States? Am I a State? Are you a State? No. We are private entities conducting a private transaction. Then what gives the Federal government the power to regulate our transactions? They claim that power derives from this clause:
[The Congress shall have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
Regardless of our communication or trading across State borders, this clause does not refer to us. It refers to recognized bodies of government: Nations, States, and Indian tribes. We are not governments. We are private entities.
If the United States Congress has the power to regulate my Commerce then I’m a State and I demand my own Representative and two Senators.
Nowhere does the Constitution give Congress the power to regulate our transaction. To quote the Tenth Amendment, that power is “reserved to the States respectively, or to the people.” If there exists a State law respecting our transaction then we must obey that law. No Federal law can apply to our transaction because we never gave Congress that power.
The only reason the State government should get involved is if one of the parties to a transaction (you or I) accuses the other of a wrong and seeks recourse. The Federal government has no power to regulate our private Commerce until one of us seeks recourse and there is a dispute among the States of jurisdiction, or until we seek recourse from the Federal government against the States.
I recognize that I have to share this great country with people who disagree with me. I’m just floating some ideas here. I am not a lawyer, a legislator, nor a legal scholar, but I sure disagree with a lot of Supreme Court decisions. At least a few Supreme Court justices have believed as I do. Sadly they were too few.
Omitted from this writing is any suggestion of how our Federal politicians could reform the current apparatus into one which operates correctly. That is a trick question because no politician would ever lift a finger to reduce their own power. Politicians are also incapable of that transgression against their brethren. And by “politicians” I mean the Legislative, the Executive, and the Judicial. All branches are complicit in the tendency to accumulate powers.
The only way to trim the Federal powers is by amending the Constitution. Such reform would be contrary to the interests of the majority of Federal politicians. Adversarial action must be done by adversaries. It can’t be done through Congress; it must be done to Congress by the States. The Constitution lights the way in Article Five:
The Congress, [...] on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which [...] shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof…
This is the only lawful and peaceful way to compel Congress. Every other road is slick with blood.
I welcome your opinion.