1. The Federal Government "is acknowledged by all to be one of enumerated powers."
2. The enumeration of powers is also a limitation of powers, because "[t]he enumeration presupposes something not enumerated.
3. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
4. The Constitution authorizes Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
5. We have recognized, for example, that "[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states," but extends to activities that "have a substantial effect on interstate commerce."I'm baffled.
Of course these quotes come from what Justice Roberts has written over several pages. Quotes 1-3 summarize the meaning of our Constitution of enumerated powers. Quote 4 is the enumerated power in our Constitution which is known as the commerce clause. Quote 5 is a good statement of what the Court has come, over the years, to actually think about the Constitution's commerce clause.
I don't understand how quotes 1-4 can fit with quote number 5. The last quote says that Congress has been granted more power over commerce, specifically it has been granted power to regulate intrastate commerce, than the power we find granted to Congress when we read the words actually written in the Constitution.
I do like the Justice's choice of words "not confined." I think this is telling. I think it is inconsistent with quote 2 which says our Congress is a legislature of limited powers. It seems to me reasonable to suggest that "not confined" is pretty much the opposite in meaning to "a limitation of powers."
It also seems to me reasonable to conclude that over the years the Court has come to change the meaning of the commerce clause. But, in doing that, the Court has done more. It seems the Court has turned a constitution for a government of limited powers into a constitution for a government that is "not confined" to expressly enumerated powers.
And, if so, it seems reasonable to conclude that the Court, over the years, has essentially amended the Constitution. Of course, if you read the Constitution, you will not find that the Court has the constitutional power to amend the Constitution.
Perhaps it is time to put away the Court's commerce clause jurisprudence and end the contortions the Court must go through in presenting it's opinions to convince us that a written constitution for a limited government can also be a constitution for a government that is unconfined?