The New York Times Comes Clean About the Commerce Clause


There are many myths about the current political scene, although one never would know it from reading the New York Times, and especially its editorial pages. For example, Paul Krugman continues to insist that Herbert Hoover followed the "liquidationist" advice of his treasury secretary, Andrew Mellon, and followed an "austerity" path. However, as Murray N. Rothbard noted in his classic America’s Great Depression, Hoover intervened in the economy at levels never seen before in U.S. History.

Furthermore, in reading Krugman’s blog and his columns, we are told that Republicans believe in "shrinking" government and cutting spending. Why? Grover Norquist once said that Republicans should reduce the size of government to a point where they can "drown it in a bathtub." Therefore, according to Krugman, that is what Republicans actually do.

Given the actual record of what Republicans do when governing, the notion that the GOP is the party of "small" or "limited" government is a sick joke, and one would think that educated people who can read simple budget and taxation figures might be able to see the reality behind the rhetoric. Alas, even though the NYT is populated with highly-educated people (and people who believe they are more intelligent than the rest of us), the myths prevail.

This "limited" government myth and the Republican Party is highlighted in a recent NYT editorial, "The Republicans and the Constitution," and it demonstrates once again that the "Big Government versus Small Government" debate is something more fanciful than what exists in the latest "Harry Potter" movies. The editorial deals with ideology and the recent Senate hearings on Elena Kagan’s nomination to the U.S. Supreme Court, and specifically the extent that the U.S. Constitution’s "Commerce Clause" should be invoked to justify federal intervention.

The editorial states:

…dozens of Senate Republicans are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

This is quite instructive, for it is clear that the editorial believes that there really should be no limits at all upon federal power, or at least federal power that meets the approval of the NYT editorial board. To buttress my last point, I quote the editorial’s next paragraph:

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The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a "substantial effect" on interstate commerce, even if they are not directly business-related.

The list goes on and on. According to this editorial, if it were not for federal intervention, children would be working for pennies a day in squalid factories, African-Americans would not be allowed in any restaurants, all of our water would be poisoned, and so on. Therefore, having no limits on the Commerce Clause is a good thing, the editorialist believes.

If you believe I am exaggerating, read the editorial’s concluding paragraph:

Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead. (Emphasis mine)

First, and most important, we are not speaking about a "vote against the commerce clause"; we are speaking of being against expansion of that clause to where it permits the federal government to intervene in state and local affairs with no limitations whatsoever. Second, even if we were to claim that all of the laws listed above were good (with absolutely no unintended bad effects), nonetheless, the editorialist refuses to go to the obvious dark side of this expansive view of the clause.

A case in point is the War on Drugs, which would not have been possible without such a view of the Commerce Clause. The NYT editorialists and journalists have taken notice of the huge numbers of black males being incarcerated in U.S. prisons, yet they blame it on the lack of federal intervention or just plain white racism.

Indeed, the incarceration rates for blacks (approximately 44 percent of the U.S. prison population) are stunning and disastrous, yet I doubt that anyone at the NYT can connect the dots. There is no way that the current Drug War, with its insistence on long prison terms for non-violent legal offenses, could be as pervasive as it is today without an expansive interpretation of the Commerce Clause. I repeat: the very thing that the NYT editorials praise without reservation is the main reason that huge numbers of black males are "in the system."

Why? The numerous laws and policies, from asset forfeiture to the development of local police paramilitary forces (SWAT teams) has come because the federal government greatly expanded its role in "law enforcement," and the justification for such laws always comes from — you guessed it.

For the past few months, I have blogged on the Tonya Craft case in Northwest Georgia near Chattanooga, in which a former kindergarten teacher was falsely accused of child molestation. What does this (and the infamous Duke Lacrosse case) and other cases in which people have been falsely accused of molestation and/or rape have to do with the Commerce Clause? The rate of false accusation has risen dramatically in the wake of federal legislation, such as the original Mondale Act of 1974, that was meant to deal with perceived problems of abuse by setting legal standards for states to follow if they wished to receive federal funding to investigate and prosecute such cases. The funding, of course, was justified by…you know the answer.

Furthermore, in the wake of federal funding to prosecute these and drug crimes, we find the deterioration of the rights of the accused, with the evisceration of those rights being directly tied to federal policies. Now, nowhere in the legislation does it declare that the government should squash individual rights. However, the laws DO require that after an initial accusation of rape or abuse is made, local and state authorities must follow certain procedures.

First, they must investigate all claims as though they were valid, even if the accuser recants. Investigations include medical exams and forensic interviews, and while the procedure laws are passed by state legislatures, they are driven by the language of federal policies.

Second, the laws make sure that the investigations are in the hands of people who look to benefit financially and professionally if the alleged victim "discloses" rape or sexual abuse. Furthermore, the people in the investigation chain are given various immunity protections from actions taken while they allegedly were "doing their jobs."

Third, states have "rape shield" laws that forbid the defense presenting information regarding the accuser that might cast doubt on the person’s veracity. For example, if an alleged victim has made false rape claims before, "rape shield" laws do not permit that being put before a jury, even though the evidence clearly is exculpatory.

Given these policies, it should not be surprising that innocent people are sent to prison — with the approval of the authorities, who have overturned William Blackstone’s declaration that it is "better 10 guilty men go free than one innocent man convicted" to "better 10 innocent men be convicted than one guilty man go free," at least when it comes to certain accusations.

None of this makes it into the NYT editorials, nor from its editorial columnists. Instead, we are told that there really is no downside to the expansion of federal policies, even though federal policies have overturned the rights of the accused. If this gives the reader pause, it should, for we have the "Newspaper of Record" telling us there should be no limits whatsoever to the power of the state.