War and the Commerce Clause

The Problem, Illicit Energy

Life requires energy. Regardless of ethics, life will fight to secure that energy. Oil-wars since 1990 and Al Qaeda’s terror attacks illustrate how commercial efforts to secure energy cascade into wars.

Because America remains 50% dependent of foreign oil for survival, another war is coming in the series of Commerce Wars of Korea, Vietnam, Iraq and Afghanistan.

The illicit dependence on foreign oil is similar to the illicit dependence on energy from importing slave labor at the time the Constitution was written. In both cases a majority exercised power over Congress to support the defect. In both cases, Congress undermined liberty and self-reliance for political gain. In both cases, wars resulted.


Black Americans were liberated from slavery by 830,000 dead and wounded soldiers.


Self-reliance is the foundation for liberty. The Federal mission is to defend that liberty. Self-reliance is rigorous but simple.  Planting a Victory Gardens so each American produces at least 40% of their own food can prevent oil supply shocks from cascading into famine.

This war might be prevented by restoring of self-reliance, restoring free markets to power and transportation, enforcing the Constitution as ratified and amended, restoring the division of sovereignty, and, properly declaring wars. This article is a call to that action.

Commerce is the process of collecting and storing energy or the wealth the wealth that represents energy. To limit the risk of war caused by commerce between the States and foreign powers, the Commerce Clause was added to the Constitution:  “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The Constitution’s Framers understood energy well. Lack of energy under the Articles of Confederation was viewed as a fatal defect.

In 1913 the 16th Amendment granted Federal authorities the power to tax, greatly increasing their energy. Also in 17th Amendment to act in the interests of unions, corporations and bureaucrats, in 1918 President Wilson used the crisis of World War I to socialize communications, power and transportation infrastructures as “natural monopolies.” The Governing could define the laws and give commercial rewards to those they chose.

Over the century, power was incrementally consolidated. In 1935 Rural Electrification Administration wiped out the 600,000 windmill and distributed energy industry as it subsidized the coal powered central grid. In 1941 with the “Wickard v Filburn” decision the Supreme Court sanctioned economic central planning and deprived individual Americans of liberty to choose what food to grow for personal use. The Federal-Aid Highway Act of 1956 caused the loss of thousands of miles of railroads as oil was institutionalized as the lifeblood of America’s economy.

To secure that oil, American military forces have been repeatedly engaged in undeclared wars in Korea, Vietnam, Iraq and Afghanistan.

This illicit dependence on foreign oil is similar to the illicit dependence on energy from importing slave labor at the time the Constitution was written. In both cases a majority exercised power over Congress to support the defect. In both cases, Congress undermined liberty and self-reliance for political gain. In both cases, wars resulted.

Black Americans were liberated from slavery by 830,000 dead and wounded soldiers.

Children are the minority burdened by the current unconstitutional conduct. A 50% dependence on foreign oil, Oil Famine, is unfolding as the slow pace of geology. US Peak Oil was in 1970. Since 1990 oil costs increased 494%. Wars have been required since 1990. Oil dependence has become a target and petro-dollars fund terrorist attack. It seems likely that in the next zero to 10 year, children will face the sudden loss of foreign oil.

Declarations of War

America is a nation ruled by the people through written instructions to the Governing, not the whims of the Governing interpreting their instructions. The Declaration of Independence establishes that American wars must be declared, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them.” Not military commanders, such as General MacArthur in Korea, nor Congress as in Korea, Vietnam, Iraq or Afghanistan can legitimately commit American soldiers to war without the rigors of a formal declaration that informs the People.

Military philosopher Von Clausewitz noted “Power is the will and ability to win applied to achieving an objective.” Without an objective, soldiers are sacrificed in stalemates. No sacrifice by soldiers and their families, not bravery nor competence in battle can compensate for no objective.

To avoid accountability for the messiness of war, to fight wars without troops, the Governing are unleashing human-hunting robots. Robots, like nuclear and biological weapons, exponentially increase the risks to liberty from the whims of the Governing. Wars must be declared and weapons limited to within our moral capacity.

Written Instructions to the Governing

The Declaration of Independence, Articles of Confederation, Constitution establish that Constitutional laws require the consent of the governed. The Framers understood the imperfections of the Articles of Confederation and the Constitution. Article 5 of the Constitution provides a rigorous and public process for us to fix what they could not and to change the documents to meet changing needs.

The Constitution is the written instructions to the Governing of the maximum powers granted to “provide” defense to “secure the Blessings of Liberty to ourselves and our Posterity”.  Federal powers are limited to only “promote” welfare, sovereignty for welfare being retained by the States and People as emphasized in Amendments 9 and 10 of the Bill of Rights and Madison in Federalist #45:

Bill of Rights:

The People, via their Ratifying Conventions, documented this understanding in recommended Amendments:



New York:

Commerce Clause

To prevent commerce from causing wars, the Constitution grants Congress power; As with unlimited taxing, “the means ought to be proportioned to the end.” The means to affect commerce were limited to “post Roads.”

Royal transportation monopolies were well understood. Monopolies harm that caused the Revolution. On Sept 14, 1787, in the Convention, Benjamin Franklin and James Madison proposed a power to tax and fund building highways and canals. The proposal was rejected (Pennsylvania, Virginia, Georgia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, no, 8. Madison Notes of Debate).

President Madison emphasized this understanding when vetoing transportation funding on March 3, 1817, noting:

“Having considered the bill this day presented to me entitled 'An act to set apart and pledge certain funds for internal improvements,' and which sets apart and pledges funds 'for constructing roads and canals, and improving the navigation of water courses' . . . I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives. The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers."

In the "Wickard v Filburn" decision, without the rigors of Article 5, the Supreme Court made the Commerce Clause to the cause of war and famine. People’s economic liberty to grow food for personal use was granted as powers to the Governing to whatever Congress deemed was in the general welfare.

A farmer, Roscoe Filburn, in 1941 grew about 10 acres of wheat for on-farm consumption in Ohio. The U.S. government ordered Filburn to destroy his crops and pay a fine, even though he was producing the wheat for his own use and had no intention of selling it. The Supreme Court interpreted the United States Constitution's Commerce Clause to allow Federal intrusion into private activities and the policing of individual Americans.


Illicit energy, the need for foreign oil to power 50% of the Federal highway monopoly made commerce the cause of nearly perpetual undeclared wars since 1950. The cost to American is indicated by $7.7 trillion, or about $100,000 per American family, spend on defense since the collapse of the Soviet threat in 1990. The ineffectiveness of this defense was paid for by the public on 9/11 and buy soldiers in undeclared wars in Korea, Vietnam, Iraq and Afghanistan.

Deploying the Internet required about 36 years. Shifting a major infrastructure normally requires 40 to 200 years. Logistics has mass, momentum and a tail. The current momentum of oil logistics looks indicates crisis will occur in far shorter time than infrastructure can be re-tooled. If the scale of Oil Famine is similar to the Irish Potato Famine’s 20% population loss, the cost will be about 60 million Americans.

Infrastructure Liberty

In 1982 liberty to choose communications networks was restored to the people by the court breakup of the AT&T monopoly. Long-dormant innovations such as the Internet (1969) and radio telephones (1946) commercialized. A century of centrally planned rotary telephones was displaced as millions of jobs were created deploying vast innovations, with better service at lower costs.

Similar to the Internet, there are free market alternatives in transportation networks.

The barrier to deployment was noted in Congressional Office of Technology Assessment study PB-244854 published in 1975 on how PRT can make America cities independent of foreign oil. US DOT “neglected near-term ... simpler approaches to correct transit problems. Finally,  institutional failures may have hindered implementation.”

When free markets are restored to power and transportation it will be possible to achieve what Thomas Edison observed:

1910: "Sunshine is spread out thin and so is electricity. Perhaps they are the same, Sunshine is a form of energy, and the winds and the tides are manifestations of energy.”

“Do we use them? Oh, no! We burn up wood and coal, as renters burn up the front fence for fuel. We live like squatters, not as if we owned the property.

“There must surely come a time when heat and power will be stored in unlimited quantities in every community, all gathered by natural forces. Electricity ought to be as cheap as oxygen...."

1931:  "I'd put my money on the sun and solar energy. What a source of power! I hope we don't have to wait  'til oil and coal run out before we tackle that."


Liberty for ourselves and our Posterity” is the objective of the Federal government. War, debt and pollution are the consequences of Federal actions to exceed the specific limitation of “post Road”.  Economic liberty is essential to adapt to increasing oil risks. Currently, the Federal monopoly block that liberty, h

Bill James  --  Draft  -- -7/26/13        612.414.4211        bill.james@jpods.com