Interstate Commerce Muddles

Tibor R. Machan

In America most of the mild and Draconian intrusions in people's economic lives are legally justified by the interstate commerce clause of the U. S. Constitution--Article I, Section 8 in particular. "Congress shall have power...[t]o regulate commerce with foreign nations, among the several States, and with the Indian tribes...." (Another source is the arcane police power of governments!)

The best interpretation of this power has never been uncontroversial. Some argue it could mean virtual Stalinist powers by Congress over the economy of the nation; some say it means only that Congress is authorized to regularize commerce, make all of the states conform to the principles of free market economics (instead of the mishmash of protectionism that was in place before the establishment of the country).

In recent times the former interpretation has prevailed in the courts, so now Congress is taken to be in charge of any economic activity that crosses state borders or even the sort that has a more impact on commerce is neighboring states!

Does this make any sense? Not for free adult men and women, not in a free country. In such a country Congress would not be regulating commerce of any kind since that entails regimenting the economic activities of the citizenry and no one has the basic, natural, human individual right to do that. Congress isn't God or even king! Congress exists so as to secure our rights, period, just as the Declaration of Independence states. Anything more is dictatorship, even if only of the majority of the country's voters over the rest of us. In a free country no such dictatorship is justified. Democracy isn't any excuse for regimenting the minority's lives by the majority. Democracy pertains, in a bona fide free country, to applying the basic laws of the land to new areas of life (say, the Internet). But always consistent with the basic (constitutional) principles of the country, never in contradiction to them. (If judicial review is a valid activity of the country's courts, the courts must strike down any effort by majorities to violate individual rights!)

Why is it that the federal government has the legal power to tell citizens with whom they must do business? Because of the interstate commerce clause. And that is all wrong. No such power of Congress or any other political body may be authorized over the choices of free adult men and women. Such men and women, citizens of a free country, have the right to decide for themselves with whom they will do business and not be regimented by a bunch of their fellow citizens! Of course, they must also follow through on commitments they make in the process, such as when they enter into contractual relations with their fellows. And sometimes such relations are entered into implicitly, not overtly, as when a citizen opens a store, shop, or restaurant--any place of business--"to the public," meaning to anyone in the market for doing business with him or her (who behaves in a civilized fashion).

So if one invites people to do business, one may only restrict or qualify the invitation ahead of time and must be fully disclosed. If I don't want to admit married men or women into my store, this must be something people can learn before they enter the store. This is like the restrictions on who may join a club or religious order. No one married may become member of the Roman Catholic clergy, and this is made clear up front and everyone must live with it even if it is a silly requirement. Some such requirements are not silly, such as requiring that only men come to do business in one's barbershop or medical clinic. Similarly, if one makes clear, up front, that one will not do business with blacks or women or very tall or very short people, this is something--be it an ethical or unethical practice--that must be declared up front, not once someone enters to conduct business or to seek a job being on offer. That is because opening an establishment without specifying the restrictions implies the absence of restrictions by the reasonable person standard of (common) law.

In a free country the right of freedom of association must be fully protected. But, also, once it is announced that one will do business with any civilized potential customer, that too must be protected from any arbitrary breach. The fact that America's Constitution permits Congress to ignore this just shows how far the country needs to go to become a truly free and just society.