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June 16, 2005

Who needs the rest of the Constitution when the "commerce clause" permits everything?

Our Living Constitution™ has evolved some more, as evidenced by this excerpt from an AP dispatch:
Central Texas Cave Bugs Protected

The U.S. Supreme Court has handed a victory to endangered beetle in Travis County.

The highest court in the land refused to hear the case involving Central Texas cave bugs. And that's good news for the bugs.

But the refusal eats holes in arguments by property rights advocates that endangered species protection is unjustly applied.

The case challenged the Endangered Species Act as it is used under the Commerce Clause, which gives Congress the power to regulate interstate commerce.

In the case -- GDF Realty Investments versus Gale Norton, Secretary of the Interior -- property rights advocates argued the clause was being erroneously applied to species found in a single state.

An area near Ranch Road 620 and 2222 might have looked very different had developers gotten their way in the 1980s.

Plans included a Wal-Mart and apartments worth about $60 million.

But at the time, environmentalists found a few species of cave-dwelling beetles and spiders in the area.

U.S. Fish and Wildlife officials halted plans using the Endangered Species Act.

Environmentalists said disturbing that habitat could threaten interstate commerce.
This story is absurd on so many levels... where to begin?

The Constitution's "Commerce Clause" comes from Article I, Section 8, and reads as follows:
The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States...
I guess it's no use pointing out any more the fact that "among the several states" means "between the several states", and that it refers to actual commerce, not to things that have some second-, third-, or fourth-hand "nexus" to interstate commerce. The federal government is empowered to act as a "referee" between the states, essentially to make sure that one state doesn't act to unfairly restrict the flow of goods from another state. An obvious example from the time the Constitution was written would be a coastal state charging unreasonable fees to businesses which were trying to get their goods to port from a landlocked state. So, in this view, any time an actual commerce issue transcended the jurisdiction of a single state, the federal government could act.

How times have changed.

Case law has permitted the Commerce Clause to evolve so that it encompasses just about anything that Congress wishes to regulate. All a bill's proponent has to demonstrate (if he/she even bothers to try) is that [the thing to be regulated] has some "nexus" (or connection) to interstate commerce, no matter how strained. Thus we have such things as the Endangered Species Act consitutionally justified through the Commerce Clause.

We also have newspapers reporting: "Environmentalists said disturbing that habitat could threaten interstate commerce."

Even given the way the Commerce Clause has evolved, how could anybody argue this with a straight face? One could more reasonably argue that the commerce being threatened by enforcement of the ESA was that of Wal-Mart and the apartment complex (but even then we're not talking interstate commerce as originally defined).

It's pathetic that the plaintiffs had to concede this twisted definition of interstate commerce. They were reduced to arguing that the cave beetle was found only in a single state, so it wasn't really interstate commerce, and thus the ESA could not be enforced in this case. In truth, not only was it not interstate, it also wasn't commerce at all.

Time and time again we've seen the majority of the justices on the Supreme Court demonstrate that despite their oath to the Constitution, they do not believe that the document means what it says.

In fact, one could argue that they are the Jesus Seminar of constitutional scholarship. They spend their time expunging from the Constitution those portions that are not consistent with their view of what the Constitution is all about, and put their ideological spin on whatever remains.

All Congress must do is ritually invoke one of the remaining, properly-spun clauses (especially the aforementioned Commerce Clause or the General Welfare Clause), and the Supremes are happy.


UPDATE: If you're really in the mood to see your head explode, check out the arguments the Bush DOJ uses to persuade the SCOTUS to refuse the case.

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