Protect and Serve Act: Another Bipartisan Attack on the Tenth Amendment from Congress

Yesterday, the imperial “House of Representatives” continued its attack on the 10th Amendment and the entire Constitutional structure by easily passing the “protect and serve act.”

Overall, just 35 House members voted against the bill (H.R. 5698).

Using a dangerously expansive view of the “interstate commerce clause,” they created a new federal crime. If passed, anyone who injures or attempts to injure a police officer will be guilty of a federal offense – no matter how small the injury and no matter if it was intentional – if the offense has some connection to or effect on interstate commerce.

But the commerce clause of the Constitution authorizes nothing of the sort. In fact, Rob Natelson covered this kind of argument in his important article, Claiming Almost Everything is “Commerce.”  He wrote, in part:

An even broader version of this theory was published more recently by a Yale law professor.  He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue.  It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

Additionally, the Constitution delegated to Congress very limited powers to make criminal laws. In What Criminal Laws are Congress Authorized To Make? Publius Huldah points out that these powers fall into five categories:

a) those made pursuant to express authorizations for four specific crimes;

b) those made under the “necessary and proper” clause;

c) those made for the few tiny geographical areas over which Congress has “exclusive Legislation”; d) those governing the military; and

e) those made pursuant to two of the Amendments to the Constitution.

related bill in the Senate is currently in the Judiciary Committee.

The so-called “Protect and Serve Act” couldn’t be further from “preserve, protect and defend the Constitution of the United States.”

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