Congress Shall Make No Law
by
Matt Giwer (c) 1995 <3/11>

      Without going through a myriad of examples of Congress exceeding it delegated authority, let us cut to the quick. In passing laws in areas not delegated to it in the Constitution, it is not, repeat NOT, responding to new social pressures and changes in the world. I grant there have been many changes in the two hundred plus years since it was adopted. But what Congress is doing is not adapting to those changes.
      What Congress is doing is exactly the state of affairs the Constitution itself was intended to prohibit.
      For example, at no time was the granting of the power to regulate interstate commerce intended to me the power to prohibit interstate commerce. If the power to regulate were intended to be the power to prohibit interstate commerce then the federal government would have been granted the power to economically isolate the states. No one suggests that was a power granted to Congress.
      Yet, while agreeing there is no power of prohibition, we have many laws prohibiting some forms of interstate commerce. Try selling kiddie porn across state lines with an FBI agent present and see what happens. That is the power of prohibition that was not granted in the general and obviously does not exist in the particular, ANY particular. The assault weapons ban is the same issue. It is clear that if Congress has the power to ban the manufacture of assault weapons and prohibit them from interstate commerce then in fact Congress has the power to ban any and all interstate commerce, regardless of the commodity.
      If Congress should decide it does not want people traveling between states it clearly has the power to make doing so a felony if you grant it has the power to prohibit any activity between the states. If you do not accept that Congress has only the powers granted to it then you accept that Congress has unlimited powers as long as there is some word or three in the Constitution under which it can act.
      My point is that this is nothing new. It is a regression to what was intended to be prohibited by the Constitution. It is not adapting to modern times. And let us keep in mind here, there were always modern times. Today we point to the instant communications; in the past they pointed to the new and improved reign of King Falderall the IV. That we now have TV instead of one page newspapers does not mean that people are not using TV in the same manner as those newspapers. That there were newspapers instead of the town crier and the rumor mill does not mean they were not used in the same manner.
      Technology does not change human nature.
      19+1 rounds in a handgun instead of one shot flintlocks do not increase crime. In the history of London the single most effective thing to decrease crime was gaslights on the streets. The "guest bedroom" came about as no dinner guest in his right mind would go home after dark in the best of neighborhoods.
      So are increasing gun restrictions a result of increased technology? Of course not. But why the increased restrictions?
      Because human nature wants regimentation of human behavior. Regulating the arms a person may possess is as old as human history. When Romans were using short swords "civilian" swords were limited to a fraction of that length. When Japan saw its Samurai system threatened by black powder it banned guns rather than getting better guns. When the peasants revolted against Peter the Great's attempt to industrialize Russia they were banned from having any weapons.
      So what is new? The people who claim new laws are necessary because of changing times are NOT talking about laws which address the changes in our times. They are in fact regressing to the exact traditional and primitive response people have always had. And the people specifically did not give Congress the power to exercise those primitive responses.
      Why should Congress have the power to prohibit Kentucky from growing and exporting marijuana? Where is it written Congress has the power to prohibit arbitrary items from interstate commerce? The last time that was tried, it was called Prohibition and took a Constitutional Amendment. Where is it written Constitutional Amendments are no longer needed to do the same thing?
      I am fully aware that the points I am raising are at best thirty years away from a "concerted and no failures along the way" effort to be recognized again as the meaning of the Constitution. It really is time to start over. At present the country is on a path of worship it prior decisions and refusing to admit its previous errors lest "the turmoil be too great."
      It is trivial to point out that a finding against all federal drug laws would wreck havoc upon our country. But it is more important to uphold justice in that they have committed no crime as Congress had no power to pass any such law.
      We are arguing our own precedent rather than the Constitution. The Constitution is not sacred. It can be changed at any time and the means of changing it are stated within it.
      But when these "forces of change" are in fact regressions to exactly the arbitrary powers of government it was intend to prohibit, that is not progress. It is not response to changing times. It is regression to pre-constitutional times when anything was fair game.
      Gentlemen and ladies, it looks like a duck, it waddles like a duck. I would prefer to believe it is a duck than a Constitutional law.