Progressive Judge Says Commerce Clause Overrides the Bill of RIghts

At least one judge in the Third Circuit believes the Commerce Clause overrides the Bill of Rights.

In a recent decision of The United States Court of Appeals for the Third Circuit, in the case Range v Lombardo, on June 6, 2023, the en banc court ruled some felony convictions are not sufficient  to restrict Second Amendment rights, based on the historical record. Eleven of 15 judges concurred with the majority opinion. Four judges dissented. One of those was Judge Jane Richards Roth, appointed to the Third Circuit by George H. W. Bush in 1991. She was born in 1935 and started her governmental career working as a typist and administrative assistant in the Foreign Service of the U.S. Department of State, in 1956. She graduated from Harvard Law School in 1965. Judge Roth assumed senior status on May 31, 2006.  She is a few days shot of her 88th birthday (June 16). 

Judge Roth makes a strong case, based on Progressive philosophy, the Commerce Clause overrides the Bill of Rights. She gives the usual litany of Progressive "arguments": Things have changed since the ratification of the Bill of Rights. The federal government has to have more power than the Bill of Rights allows. That was then. This is now. Here is part of the dissent from Judge Roth of the Third Circuit P. 96 of 107 :

In Bruen, the Supreme Court considered whether a regulation issued by a state government was a facially constitutional exercise of its traditional police power. Range presents a distinguishable question: Whether a federal statute, which the Supreme Court has upheld as a valid exercise of Congress’s authority under the Commerce Clause,2 is constitutional as applied to him. The parties and the Majority conflate these spheres of authority and fail to address binding precedents affirming Congress’s power to regulate the possession of firearms in interstate commerce. Because Range lacks standing under the applicable Commerce Clause jurisprudence, I respectfully dissent.

Judge Roth explicitly states the modern expansion of the commerce clause, to include virtually all activity which has any effect on commerce, overrides the Bill of Rights because the scope of modern commerce is far greater than commerce at the founding.  This case involves the Second Amendment. Roth's logic as easily applies to the First Amendment and others. Virtually all First Amendment usage involves items which have a connection to interstate commerce - printing presses, telephones, computers, satellites, fiber optic cables, etc. Church pews are made of wood shipped across state lines; paid for by credit cards recognized by interstate banks. Nearly all homes affect interstate commerce. Under the expansive interpretation, the federal government could regulate all use and sale of homes, and inspect them at any time, in spite of the Fourth Amendment. Under the expansive, Progressive interpretation, the Ninth and Tenth Amendment are swalloed up. Virtually all of life is encompassed by the absurd extension of the Commerce Clause created by Progressive judges. 

Most of what Judge Roth writes about modern times applied to commerce at the time of the ratification of the Bill of Rights. 

In U.S. v. Lopez, 1995, the Supreme Court temporarily stepped away from the Commerce Clause abyss into which we have been tumbling. Justice Thomas complained about the Supreme Court failing to followup on the Lopez decision, instead doubling down on Commerce Clause suppremacy over all in the  Gonzales v. Raich idiocy.  All six of the judges who voted for Raich (1996) have now left the Supreme Court. Only Thomas remains of the judges on the court for the decision.  From Justice Thomas dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers

Justice Thomas gives a powerful, originalist and textualist explanation of the Commerce Clause: 

As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586—589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112—125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857—862 (2003).

Most of the judges on the Third Circuit disagree with Judge Roth. From the majority opinion concurrence by Judge  Porter of the Third Circuit P. 28-29 of 107:

A conception of the Second Amendment right that retcons modern commerce power into early American state law is anachronistic and flunks Bruen’s history-and-tradition test. Setting the federal floor through a combination of antebellum state police power and Congress’s post-New Deal commerce authority, as the dissents propose, would underprotect the constitutional right to keep and bear arms.

Analysis: 

The modern Supreme Court is stepping back from the Progressive position of all power to the administrative state. It may be the Supreme Court will finally put some limits on what the Commerce Clause covers. Justice Thomas has explicitly shown what those limits should be.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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