All I Want for Christmas is a 2nd Bill of Rights (Proposal #1 Commerce Clause)
In the spirit of Christmas I am asking Santa Clause to bring me a 2nd Bill of Rights in order to restore limits to our national government so that I can tell my kids with a straight face that limited government and federalism are two important principles of our Constitution. This is the first of the ten amendments I’m hoping he magically brings me. I’ve been pretty good this year so I’m crossing my fingers, though I won’t be holding my breath. Merry Christmas
Proposal #1 – Clarifying the Limits on National Regulation of Commerce
Section 1. The third Clause of the eighth Section of the first Article of this Constitution (the Commerce Clause) shall not be construed to empower the Congress to regulate the Commerce or non commercial Activity within a State without its Consent; and a Person in the several States need only obey the Regulation of Commerce enacted by the Congress when directly engaged in transporting commercial Goods and Services across the Border of that State or when directly engaged in blocking or attempting to block such Traffic, not including any indirect Action or Inaction no matter how significant the accumulative Effect; and said engagement cannot be mandated, extorted, or otherwise coerced (for example under the Threat of a Tax for not doing so) by the Congress; nor shall this Clause be construed to prohibit the several States from regulating Goods and Services within their Territory, but no such Regulation shall discriminate unreasonably on Account of Citizenship, Residency, or the Origins/Route of Traders or Goods and Services.
Section 2. Each State may prohibit the Importation or Migration of any Commodity, Material, Plant, Animal, or Pestilence that it has by general Law prohibited within its Territory, but no State may unreasonably discriminate against the Citizens of another State except with regards to the Importation or Migration of Refuse and hazardous Materials, Plants, Animals, Diseases and Pestilence.
Section 3. No State shall directly grant to Anyone the exclusive Right to engage in any Type of Commerce within its Jurisdiction.
Section 4. The Congress may regulate the Commerce within a State during Times of War as Victory requires it, but such Regulations must be approved by two-thirds of each House of the Congress (as Evidence that Victory requires them), and each Regulation shall expire upon the formal End of the War or two Years after the Regulation’s Enactment whichever comes first, or sooner if the President declares the Regulation to be no longer necessary for Victory.
Sections 5. Nothing in this Article shall be construed to affect any other enumerated Power of the Congress besides the aforementioned Clause.
The intent of this amendment is to overturn decisions like Wickard v. Filburn (1942) and Gonzales v. Raich (2005), and at least restore the understanding of the commerce clause to that which swayed the Court in Schechter Poultry Corp. v. United States (1935). And while the Civil Rights Act of 1964 will also be a casualty, thankfully the protection of civil rights throughout the country no longer hinges on national law, or on any law for that matter. This is not to say that all is well. In 1964, that clearly was not the case. The political and economic power that racism had in our national culture back then, had the effect of a monopoly against Blacks, which for the most part relegated them to a second class status. Does racism still exist today? Certainly, but unlike then, the monopoly is broken, and no longer is racism so widely accepted, excused, or ignored. Is there more to be done? Yes, racism and prejudice will always exist, we’ll always need to be on guard, we’ll always need to fight it, but we need not always be so mobilized, disciplined, and controlled. All is not perfect, but at least now we are at a point where we can say that continuing the existing precedent on the commerce clause does more harm to liberty than good. Now is not the time to forget the dangers of racism, now is the time to move ahead, and we should no more let fear hinder our advance, the advance of liberty, than we let rose-colored glasses blind us to the pitfalls on our path ahead.