Thomas comes closest in Ashcroft v. Raich

The decision in Ashcroft v. Raich (restyled Gonzalez v. Raich since Alberto Gonzalez succeeded John Ashcroft as U.S. Attorney General) is a setback for constitutional fidelity. Of all the members of the U.S. Supreme Court, only Justice Clarence Thomas came close to getting it right, and even he got it wrong on a few points.

For the decision see http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html , and particularly the dissent of Justice Thomas. While he gets the essentials of original understanding of the Commerce Clause nearly correct, he commits the first error in considering the original meaning of "commerce" to include both "goods" and "services". My research, including recent research of documents archived from the Founding Era, makes it clear that originally it included only tangible commodities, not services, and that the defining attributes were (1) transfer of title; (2) transfer of location (from a foreign nation or state to a different state in this nation); and (3) transfer of possession; and all this (4) for a valuable consideration.

His second error is to accept the doctrine that the power to "regulate" "implies" (authorizes) the power to "prohibit" or to impose criminal penalties (deprivation of life, limb, or liberty). The power to regulate originally meant only the power to restrict some modalities of something, not all modalities, and it only authorized the civil penalties of deprivation of property or privileges.

The third shortcoming of his dissent is not to make it more clear that the delegation of a power is only authorization to make a certain kind of effort, not to do whatever it might take to obtain an outcome. The Necessary and Proper Clause only makes sense, "for carrying into Execution", if understood in this way. The express delegation of a power may only define a subject matter, but it should always be understood that the delegation is not plenary within the meaning of the subject matter, but is further restricted to constitutionally legitimate public purposes, which if exceeded are abuses of discretion. The Constitution is not written to enable the achievement of any or all of the purposes for which delegated powers might be exercised. If the effort authorized by the delegation is not sufficient to accomplish the purpose, it may be because the outcome is beyond the competence of government, or it may mean the Constitution needs to be amended to delegate additional powers, but it is not a legitimate remedy to expand powers to whatever extent the accomplishment of a desired outcome may require. That would be a formula for extending powers without limit in every subject area, because there are always outcomes that no delegation or exercise of governmental powers can achieve.

See my article "Original Understanding of the Commerce Clause" at http://www.constitution.org/col/02729_fed-usurp.htm.


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