Yesterday, the Washington Post argued that Congress may regulate health insturance throughout the Union because health care is a "commodity,"
The Supreme Court has given Congress wide but not unfettered latitude in regulating interstate commerce. It barred federal efforts to promulgate laws that ban guns near schools and those addressing violence against women, ruling that these activities have nothing to do with commerce. But health insurance is a commodity, and a consumer who sits on the sidelines has a significant impact on the market.
Strange argument. I thought that the Court ruled that the gun free school zone act was unconstitutional because it did not regulate commerce, not because it was regulating commerce, but, at the same time, that commerce was not interstate. The same is true of the other case. The court was saying that not all activity is commerce, even if it might, in some way, have some consequences for the market.
What's behind the Post's language, I suspect is Wickard v Filburn, a ruiling of the FDR Court which ruled that a farmer growing wheat on his own land for his own use was still engaging in interstate commerce, because his actions had an impact on the market as a whole. What was really going on is that many other farmers were doing the same thing, trying to get around the limits the federal government sought to impose on wheat production. If there was a private use exemption, the regulation would be greatly weakened, therefore, the court argued, the law must allow the U.S. government to limit a farmer's use of his own land for his own purposes.
The trouble with that ruiling is not that it is entirely illogcal. One can make a case that the decision was, indeed, necessary to regulate interstate commerce in the fashion the federal government wanted to. The trouble is that it makes a mockery of the Constitutional text. Regulating the amount of his own, private land that a farmer may use is not a constitutional means of economic regulation. If the Congress has the right to regulate "interstate commerce," and not simply "commerce" throughout the U.S., that necessarily implies that there is such a thing as non-interstate commerce. The Court ruiled that, in effect, there is no such thing. As Thomas Jefferson noted long ago, "It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless." The Court violated this rule in Wickard, ruiling that, in effect, all commerce is interstate commerce, and thus interpreting an important provision of the Constitution out of existance.
P.S. As Randy Barnett reminds us, in the eyes of the Constitution, "commerce" does note mean "economic activity," even if that's how our ruiling class tends to understand it nowadays.
Update: I wrote the above in a bit of haste as I was rushing off to a meeting. I fear I didn't quite complete my thought. It may be true that one could argue that all farming is, somehow, connected to interstate commerce. That was no less true in 1789 than it is today. The logic of the constitution suggests that simply having an impact, however remote, on the general flow of commerce across statte lines, is not a sufficient condition for concluding that an activity may be regulated as "interstate commerce" in the eyes of the constitution. Beyond that. the language of the constitution is built upon a deepter understanding of the nature and purpose of government, and that deepter understanding is the criterion which we should use to interpret the text.