What Do Light Bulbs Have to do with the Commerce Clause?

American Thinker: What Do Light Bulbs Have to do with the Commerce Clause?

Rand Paul, freshman US Senator from Kentucky, at a Senate Energy and Natural Resources Committee hearing last month, summed up in a few choice sentences the Democratic Party progressive agenda:

You're really anti-choice on every consumer item that you've listed here, including light bulbs, refrigerators, toilets -- you name it, you can't go around your house without being told what to buy... You raise the cost of all the items with your rules, all your notions that you know what's best for me.

A few days ago, in further hearings on more appliance regulations, Sen. Paul continued his assault on the "boot heel of the collective," drawing from Ayn Rand, his namesake.

Exhortations about light bulbs and liberty are good for a rally or entertainment for a cable news sound bite, or a late night comedy show. But there's more going on here.

It's time for us to insist that there is no basis in the US Constitution for home appliance regulations designed to control the consumption of electricity or water. Any such statutes or regulations fail the Rehnquist Court reading of the Commerce Clause, Article I Sec 8 Clause 3: "Congress shall have the power ... to regulate Commerce ... among the several States ... " and usurp the Ninth Amendment from the people.

The central issue is how the Commerce Clause, previously distorted and stretched to underwrite any and every conceivable interference in our daily lives, may have finally found its high water mark under the conservative Rehnquist Court. There is considerable scholarship underlining the original context of the Commerce Clause and its application, notably from Supreme Court Justice Clarence Thomas.

Law Professor Randy Barnett in his 2001 Chicago Law Review article "The Original Meaning of the Commerce Clause" writes at the outset:

In United States v Lopez¹, [a Supreme Court opinion where a federal statute, the Gun-Free School Zones Act of 1990 prohibiting firearms within 1,000 yards of a school, was overturned ]for the first time in sixty years, the Supreme Court of the United States held a statute to be unconstitutional because it exceeded the powers of Congress under the Commerce Clause². In his concurring opinion, Justice Thomas offered a critique of contemporary Commerce Clause doctrine--based on the original meaning of the clause--that went well beyond the majority opinion. According to Justice Thomas, "at the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes."³ He also cited the etymology of the word, which literally means "with merchandise."⁴ He then noted that "when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably."⁵ The term "commerce," according to Justice Thomas, "was used in contradistinction to productive activities such as manufacturing and agriculture."⁶