Does the US constitution mandate Free Trade?

Author:Morris, David

Gaveling Down the Rabble: How "Free Trade" Is Stealing Our Democracy by Jane Anne Morris. New York: Apex Press, 2008, 182 pp., $18.95 ISBN 13: 978-1-891843-39-6

In 1974, I helped found the Institute for Local Self-Reliance. As the name implies, we focus on building strong, self-sustaining, equitable and self-determining local and regional economies. Enabling that goal requires the exercise of local and state authority. Early on we encountered a surprising obstacle to the exercise of that authority, Article I, Section 8, Clause 3 of the United States Constitution: "The Congress shall have regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes."

At first glance, the words, popularly known as the "commerce clause" offer no surprises. When Congress decides to regulate commerce among the states, its regulation clearly pre-empts state and local statutes. But what happens when Congress doesn't regulate? The courts decide. And, therein lies a tale. For over the last 125 years the Supreme Court has ruled that when Congress has not decided it has indeed decided and decided to pre-empt state and local authority

The Institute first encountered the commerce clause with our work on solid waste. Solid waste is clearly a local problem. Local governments regulate garbage pickup. The pickup and disposal of garbage clearly come under the police powers of communities to protect their citizens' health and safety, and, from an environmental perspective, future generations as well.

In the early 1980s, Michigan adopted a solid waste statute that required all counties to develop a 20-year solid waste plan and dispose of their waste within their borders. Clearly the intent was to maximize recycling, since the more a county recycled, the longer its landfill would last. In return for their accepting responsibility for their own wastes, the state delegated to counties the authority to keep other counties and other states from dumping their garbage in local landfills.

Garbage collection companies in other states sued and the Court overturned the Michigan law. It ruled the state could not prevent the dumping of garbage from other states within its borders. It could, in effect, delegate responsibility but not authority. It could encourage recycling but it could not guarantee that increased recycling would translate into a need for fewer landfills. The decision effectively undermined the incentive to recycle.

At about the same time the Court issued its decision curbing Michigan's authority, the United States was beginning to negotiate a series of trade agreements that curbed national authority: the US-Canadian...

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