The Commerce Clause part 2 of 4

by Dahni

© Copyright 10/22/09

all rights reserved

HOW can WE the People regain control of OUR right to “life, liberty and the pursuit of happiness?WE began delving into what won’t work to get to what will work. So far:

The List (simplified)

1.   Overthrow the government by a military coup or para-military militias?

2.   The 9/12 Project?

3.   Challenge ‘The Commerce Clause’? This is where WE are

Today – ‘The Commerce Clause’ – part 2 of 4

WE have looked at the exact wording of the ‘Commerce Clause’ from the U.S. Constitution. WE looked at ‘Wickard VS. Filburn,’ the landmark case decided in 1942.  WE also looked at the U.S. Supreme Court’s own website, as to the facts of this case and its unprecedented decisions. Finally, we looked at several states that have begun recently, to challenge those decisions under the banner of gun control laws.

Many strict constitutionalists believe the Supreme Court decisions in ‘Wickard VS. Filburn’ were unconstitutional. What was more than a mere interpretation of the meaning of the word ‘commerce’ begs the question:

How did the federal government not just have the power to ‘regulate commerce,’ but command jurisdiction over the states?

In order to understand this we need to understand what else was going on in the country in 1942 when the Wickard v. Filburn case was decided, granting more control to the Federal government, by interpreting the Commerce Clause as the Supreme Court did. Unfortunately, by 1942 when his case found its way to the U.S. Supreme Court, all but one justice had been appointed by President Franklin Delano Roosevelt. Justice Owen Josephus Roberts, a Republican, had been appointed by Herbert Hoover. The Court was clearly in Roosevelt’s corner philosophically. The court’s unanimous decision in this case reflected New Deal logic.

In telling a story, there is a format utilized known as narrative development. In order to appreciate the ending, we need to understand how the story evolved. Such is the importance in understanding the ‘Commerce Clause.’ What led up to this court case and what else was going on in the country at the time the Supreme Court rendered its decision?

To raise revenue to fund the War Between the States, the income tax was introduced in the United States with the Revenue Act of 1861. It was a flat rate tax of 3% on annual income above $800. The following year, this was replaced with a graduated tax of 3-5% on income above $600 in the Revenue Act of 1862, which specified a termination of income taxation in 1866.

The Socialist Labor Party advocated for a graduated income tax in 1887. The Populist Party “demanded a graduated income tax” in their 1892 platform. The Democratic Party, led by William Jennings Bryan, advocated the income tax law passed in 1894, and proposed an income tax in their 1908 platform.

Prior to the U.S. Supreme Court’s decision in Pollock v. Farmers’ Loan & Trust Co.,157 U.S. 429 (1895), aff’d on reh’g, 158 U.S. 601 (1895) all income taxes had been considered to be excises (indirect taxes) required to be imposed with geographical uniformity; such taxes were not required to be apportioned by state according to population (as are direct taxes).

In his dissent to the Pollock decision, Supreme Court Justice Harlan stated:

“When, therefore, this court adjudges, as it does now adjudge, that Congress cannot impose a duty or tax upon personal property, or upon income arising either from rents of real estate or from personal property, including invested personal property, bonds, stocks, and investments of all kinds, except by apportioning the sum to be so raised among the States according to population, it practically decides that, without an amendment of the Constitution — two-thirds of both Houses of Congress and three-fourths of the States concurring — such property and incomes can never be made to contribute to the support of the national government”

The Sixteenth Amendment (Amendment XVI) to the United States Constitution allows the Congress to levy an income tax withoutapportioning it among the states or basing it on Census results. This amendment overruled Pollock v. Farmers’ Loan & Trust Co. (1895), which limited the Congress’s authority to levy an income tax.

The wording of the original constitution was changed and hairs spilt over “indirect” as opposed to direct taxes.  It was ratified on February 3, 1913 by 42 of then, 48 states.

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

For history and purpose of the amendment see:

  • October 29, 1929The New York Stock Market crashes to an all time low (referred to as “Black Tuesday”), signalling the start of the Great Depression.
  • March 4, 1933Franklin Roosevelt is sworn in as the 32nd President of the United States.
  • December 5, 1933The 21st Amendment is added to the Constitution, pepealing prohibition.
  • January 20, 1937Franklin Roosevelt is sworn in as President for a 2nd term.
  • January 20, 1941Franklin Roosevelt is sworn in as President for a 3rd term.

World War II

  • December 7, 1941Japanese forces attack the United States naval base at Pearl Harbor, Hawaii.
  • December 7, 1941 – Hitler issued Nacht und Nebel, the Night and Fog Decree. This decree replaced the unsuccessful Nazi policy of taking hostages to undermine underground activities. Suspected underground agents and others would now vanish without a trace into the night and fog. SS Reichsführer Himmler issued the following instructions to the Gestapo.

“After lengthy consideration, it is the will of the Führer that the measures taken against those who are guilty of offenses against the Reich or against the occupation forces in occupied areas should be altered. The Führer is of the opinion that in such cases penal servitude or even a hard labor sentence for life will be regarded as a sign of weakness. An effective and lasting deterrent can be achieved only by the death penalty or by taking measures which will leave the family and the population uncertain as to the fate of the offender. Deportation to Germany serves this purpose.”

  • December 8, 1941The United States declares war on Japan.
  • December 11, 1941Germany and Italy declare war on the United States.
  • January 1 1942 – The name “United Nations”, coined by United States President Franklin D. Roosevelt, was first used in the “Declaration by United Nations,” on this date during the Second World War, when representatives of 26 nations pledged their Governments to continue fighting together against the Axis Powers. The League of Nations was considered ineffective since it was not able to prevent WW II
  • November 28, 1942 – Cocoanut Grove fire – Huge fire – heavy on media coverage and the public mind
  • 1942 – Congress of Racial Equality – CORE – begins in Chicago to peacefully challenge segregation. Reached its zenith when it helped organize Dr. Martin Luther King’s famous march on Washington August 28, 1963
  • 1942 – Revenue Act of 1942 gas rationing and increased income taxes
  • May 15, 1942 Gasoline rationing was put into effect. Allocation: 3 gallons per week, to cover ordinary driving demands. Office of Price Administration (OPA) was the federal agency tasked with establishing price controls on nonagricultural commodities and rationing essential consumer goods during World War II (1939–1945). The Emergency Price Control Act (EPCA) passed on 30 January 1942 provided the legislative basis for OPA to regulate prices, not including agricultural commodities. EPCA also allowed for rent controls. The most prominent result of EPCA was the General Maximum Price Regulation issued by OPA in May 1942. This effectively set the price ceiling at March 1942 levels. However, EPCA did not address other economic issues beyond price controls. The resulting economic dislocations forced Congress to pass the Stabilization Act on 2 October 1942. This created the Office of Economic Stabilization (OES) that was responsible for controlling wage levels, regulating food prices, and generally stabilizing the cost of living. At this point, any OPA activities that could affect the cost of living had to be coordinated with OES. The effectiveness of OPA’s measures is subject to some debate. While OPA pointed to an overall 31-percent rise in retail prices in World War II compared to a 62-percent rise in World War I (1914–1918), undoubtedly a black market developed in response to price controls. Maintenance of product quality was a constant concern. OPA even colorfully noted in its Twelfth Quarterly Report “a renaissance of cattle rustlers in the West.” Reports from OPA’s Enforcement Division show that 650,000 investigations were conducted for all of 1943, with 280,000 violations found. In 1944, a total of 338,029 violations were reported, with 205,779 administrative warning letters sent out. Court proceedings were initiated in almost 29,000 cases.
  • Monday, November 9, 1942 the case which challenged the Commerce Clause Petitioner:  Wickard VS. Respondent: Filburn  was decided in favor of the government

The most obvious event of 1942 when the entire nation and the world were so otherwise occupied with World War II, the attention was on the war in the media of the day, not on the courts, legislation or legislators. Intentional or not, it is easy to slip things by when people are not paying attention. After the attack on Pearl Harbor December 7th, 1941, the entire country was galvanized towards and primarily focused on the war efforts.

This is a tawdry tale of usurpation, jurisdiction and control. It is hidden like the Matrix or like Alice’s tales in Wonderland. The most astonishing thing of all is that it is all legal (fiction), and out in the open for anyone to see.

What may seem as insurmountable odds in regaining control of our liberties may appear hopeless, but there is an answer! Stay tuned here as we continue.

Next Time –  ‘The Commerce Clause’ – part 3 of 4

Check out the other blogs listed to the right. Come often. Bring others. Get involved. Do something. Even if it is just leaving a comment, that’s doing something. But don’t bother in telling me how stupid I am, this won’t work or that you hate my guts and things like that. Been there, done that and heard that all before and then some. Be original. Be different. I think no greater or more eloquent words were ever spoken about getting involved, than those by President John F. Kennedy –

“Ask not what your country can do for you,

but what you can do for your country!”

1 of WE,


An Amer-I-Can eagle

Next Post – Challenge ‘The Commerce Clause’? – part 3
Previous Post – What are WE?
Front Page – Welcome & Introduction

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