User:TachyonJack/amendment2

The Bill of Federalism is a list of 10 proposed amendments to the United States Constitution. The Second Amendment of the Bill of Federalism establishes limits on the commerce clause.

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The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful

emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

Meaning

This amendment would overrule the current interpretation of the commerce clause by removing three present justifications for the application of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.

Background

The Constitution grants Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This is amplified by the additional power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." The meaning and scope of the commerce clause have been a topic of controversy for many years. Over time, a commerce clause jurisprudence has been built up by the Supreme Court. The above amendment targets three particular applications of the commerce clause.

Effects outside state

In Wickard v. Filburn, the Supreme Court ruled that Congress could regulate the production of wheat by a farmer named Roscoe Filburn, despite the fact that Filburn did not intend to sell any of this wheat across state lines. The court ruled that since in the aggregate, unregulated wheat could have an effect on interstate commerce, it was thus covered by the commerce clause.

“ [E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.' ”

Instrumentalities

The Court has held that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." In one instance, the Court upheld federal safety regulations of vehicles used in intrastate commerce on the grounds that they run on highways of interstate commerce.

Regulatory schemes

In Gonzales v. Raich, the court ruled that the commerce clause extended to non-economic regulatory schemes of congress.