Monday, December 27, 2010

The amateur (and currently drunk) constitutional lawyer

What the hell is the commerce clause all about ? How about the 10th amendment ?

How to reconcile

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States;

Amendment 16
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States, and
without regard to any census or enumeration.


Amendment 10
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.

One might claim that income taxes must depend only on income and not on the "source derived" and so must be equal on all types of income if the main body didn't allow excise taxes. Long before the first Convention om human history, Hobbes had explained that there is no real difference between a tax and a fine. Power to tax is power to regulate. The key limit on the power of congress to regulate anything and everything was the clause over-ridden by the 16th amendment "No capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken." This clause was clearly repealed by the 16th amendment. With it were repealed all property rights and restrictions on the power of Congress (with the President or over riding a veto) to tax or fine any activity not expressly protected by the constitution.

It seems to me that, the day the 16th amendment was ratified, property rights were restricted to those based on the ban on bills of attainder and ex post facto laws.

So what's with this commerce clause ? I don't think one needs to appeal to it to justify regulations enforced via fines (aka taxes). I think it mattered back before the 16th amendment and now neither gives to nor takes away any powers from Congress.

It is clear from history that "regulate" was a euphemism for "tax" and that the clause was added to establish the first North American Free Trade Zone. The point was that states couldn't charge tariffs on imports from other states. It was a power specifically "prohibited by it to the States" not a power specifically "delegated to the United States."

The power to "lay and collect ...
Excises," definitely freed from any census or enumeration by the 16th amendment, is a very broad power to tax (or equivalently penalize with fines) any activity which is not elsewhere specifically protected. In my opinion the commerce clause adds nothing. In any case, it can't possibly remove powers which Congress would otherwise have.

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