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Title: Commerce Power: “To Regulate,” not “Prohibit"
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Published: Sep 29, 2016
Author: Barry Friedman, and Genevieve Lakier
Post Date: 2016-09-29 20:50:16 by tpaine
Keywords: None
Views: 3139
Comments: 29
Commerce Power: “To Regulate,” not “Prohibit" In a law review article titled “To Regulate, Not Prohibit: Limiting the Commerce Power,” New York University Law Professor Barry Friedman, and 2011 New York University Law graduate, Genevieve Lakier take on the daunting task of reasserting the historic and genealogical lineage of the Commerce Clause from its inception through the country’s 237 years of existence as a federal republic. This thorough and thoughtful 67 page treatise is broken down into three distinct eras. In the first section, the authors cite numerous uses and misuses of commerce power, including a legal concept allowing the federal government to prohibit commerce of certain goods or fungible items. The Commerce Clause is found at: Article 1, Section 8, Clause 3 of the Constitution, and declares: the congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Lawyers and laity alike generally assume the Congress’s power “to regulate” commerce, includes the authority to prohibit it. Professor Friedman points out that historically, this is not how the Commerce Clause has always been understood and practiced. “At the Founding, and roughly 115 years thereafter, the dominant view was that Congress did not possess the authority to ban goods merely because they crossed state lines.” Friedman maintains, “While there was paucity of discussion at the Constitutional Convention about the domestic commerce power, extant evidence suggests the Framers neither imagined or intended Congress to determine, via prohibition, what kinds of goods could move in interstate markets.” However, “Congress’s power over foreign commerce received far more attention, and here it was clear that the power “to regulate” foreign commerce included the power to prohibit it.” “The primary reason for granting Congress the domestic commerce power was to facilitate interstate trade and protect it against the sort of protectionist state trade policies that occurred all too frequently under the Articles of Confederation. These protectionist type laws, “proliferated in the weak economic conditions of the post-Revolutionary period, as states attempted to protect local manufacturers by discriminatory taxing and regulating domestic imports and by restricting access of the states’ vessels into local ports. These measures generated increasing concern about their effect on the national economy and political unity.” Alexander Hamilton argued in Federalist No. 22: “The interfering and neighborly regulation of some States, contrary to the true spirit of the Union, have, in different instances given just cause and umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by national control, would be multiplied and extended, till they become not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy.” “The Framers clearly sought to take away from the states, the power and ability to legislate interfering and neighborly regulations of this sort. They also enabled Congress to create uniform rules for trade. The Framer’s primary goal of the Commerce Clause was to facilitate the unrestrained intercourse between States, which was described by Alexander Hamilton in Federalist No. 11, in which he believed would promote both “economic prosperity and political unity.” Prof. Friedman declares that in his research, he found no record of, or a suggestion made, during the framing and ratification of the Constitution that “in addition to facilitating an unrestrained intercourse between the states, Congress would also be empowered to restrain such exchanges, by restricting what goods could cross state lines or be sold in interstate markets.” When the delegates referred to the Congress’s interstate commerce powers, they referred to them exclusively as a solution to the problem of burdensome or discriminatory state legislation. The few documented occurrences of delegates discussing Congress’ domestic powers generally opined congruous with the ideology promulgated by Madison and Hamilton in the Federalist Papers. Professor Friedman argues that in the absence of other recorded debates, “which hardly provides irrefutable evidence” of the clause’s constitutional meaning, he believes, “the silence speaks loudly given the quite explicit acknowledgement that under it’s foreign commerce power, Congress would possess the power to not only to regulate, that is, to set the rules for trade with foreign nations, but also to limit it.” In regard to foreign commerce,”there was wide agreement among the delegates in Philadelphia that Congress would have the authority to pass what were colloquially referred to as navigational acts, restricting what kinds of ships could legally bring goods into and out of the United States, and what kinds of goods they could carry.” By empowering Congress to limit foreign trade, it was believed to be necessary to defend the interests of the United States against the “exclusionary trade policies” of Great Britain, which were implemented after the Revolutionary War. These laws forbade the ships and most goods of the United States from access to British ports which caused extreme harm to the industries of the new fledgling nation, which relied greatly on trading with Britain and it’s other colonies. The power to ban goods of foreign nations was debated at great lengths within the convention hall. This power was not granted “unknowingly or without a challenge. The Federalists promoted the idea that one of the major benefits of a new Constitution was that the delegates could grant Congress the ability to enact prohibitory regulations capable of excluding Britain from all of the new nation’s ports.” Delegates from southern states were concerned Congress would limit foreign trade, benefiting the northern states. The southern states were also concerned Congress would use their new-found power to limit the importation of slaves. The delegations of Georgia and South Carolina threatened to walk out of the convention if their concerns were not explicitly acknowledged within the convention. Although the southern delegates had concerns with limitations being placed upon the importation of slaves from foreign nations, these same delegates failed to voice a single concern regarding the importation of slaves from the several member states covered by the interstate portion of the commerce clause. Historian, David Lightner suggests, “The Anti-federalists racked their brains to conjure up every possible objection to the Constitution, not one of them ever suggested that it (the interstate commerce clause) opened the way for Congress to restrict the interstate movement of slaves.” Mr. Friedman claims, “other esteemed historians have interpreted this silence, (of the southern states on this issue) to be decisive proof that, Congress’s interstate commerce powers were not intended by the Framers to empower Congress to prohibit the interstate sale, or transport of slaves, or anything else.” Some other delegates were concerned the Commerce Clause granted Congress the ability to establish “mercantile monopolies,” meaning to dictate which persons or entities could provide certain types of goods and services to the interstate market. Friedman concedes, “It seems to have occurred to no one that Congress might act not only to limit who could provide goods and services to the interstate market, but also to limit what kinds of interstate markets could exist. In short, both positive and negative evidence suggests that the Framers did not intend, and probably did not even imagine, that the Interstate Commerce Clause would be read in such a way as to give Congress the power to restrain interstate intercourse, as well as promote it.” “Those who believe Congress has the power to restrain interstate commerce, generally rely on the argument that, since Congress’s power to regulate interstate commerce appears in the same sentence granting the power “to regulate” foreign commerce, the argument fallaciously promotes that the two powers should be read in pari materia, or treated the same, as a subject matter. Unfortunately this argument does not yield any evidence or standing from the Founders to support this position.” Professor Friedman adds, “the foreign and interstate commerce powers were understood, and aimed at distant evils, suggesting the power to regulate each must be read to address distinct problems.” James Madison argues this same point “in 1819, while debates concerning the introduction of slavery in the Missouri territories emerged. Madison expressly denied Congress had authority to ban the interstate transfer of slaves, notwithstanding its’ clear authority to ban their foreign import and export.” In a letter written to a Virginia senator, Joseph Cabell, Madison made his views unambiguous: the interstate and foreign commerce clauses were not intended, nor construed, to vest in Congress equivalent powers when regulating domestic and foreign commerce. “I always foresaw difficulties might be started in relation to the interstate commerce power. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend it all the qualities and incidental means belonging to the power over foreign commerce.” Friedman’s astute examination of the express and implied understanding of “to regulate,” recognizes Madison’s interpretation was widely held amongst the founders, “despite the similarity of constitutional language, that the two powers (foreign and domestic commerce) should be interpreted differently, in light of the different problems to which they were addressed.” Professor Friedman’s concluding subject detailed within the first 24 pages of this investigation, and addressed by this review, consists of the judicial interpretation in the first century’s post-ratification practice of the Commerce Clause. “Although Congress regularly passed laws prohibiting foreign trade, it did not pass any laws to prohibit domestic interstate trade for well over a hundred years. On a few occasions, Congress passed laws restricting what goods could travel across state lines, but only when doing so was necessary to safeguard a domestic market or helped to enforce the diverse domestic policies of the states.” “The First Congress set about establishing rules for the licensing of ships that participated in interstate trade. It funded the building of lighthouses, beacons, buoys, and public piers. In later years, Congress remained heavily involved in regulating and improving waterways and other channels of interstate commerce, and the ships that traveled along them.” A number of helper laws were enacted early on to lend federal muscle to the enforcement of state trade regulations and restrictions. In 1799, Congress passed, “an Act Respecting the Quarantines and Health Laws.” “The Act authorized and required federal officers to aid the execution of state quarantines and health laws according to their respective powers and directed by the Secretary of the Treasury. At no point, however, did Congress establish restrictions on what goods could travel across state lines.” Professor Friedman asserts, “It was not until the 1818-19 debates whether slavery would be permitted in the new state of Missouri that slavery abolitionists came up with the argument that Congress had the constitutional authority to ban the interstate sale and importation of slaves. The fact that it took thirty years for abolitionist groups to recognize that the Commerce Clause could be interpreted to vest Congress with the same power to prohibit the interstate as the foreign slave trade suggests how strongly the assumptions of the Founding generation dictated the opposite conclusion.” “Outside of the immediate context of the slavery debate, no one suggested that Congress could or should impose any restraints on the goods circulating in the interstate market. Instead, it appears to have been widely accepted as the House Judiciary Committee report stated, Congress did NOT have the power to prohibit the free transportation of the products of each State through and into every other.” To the extent Congress wanted to restrict articles of commerce in the first hundred years, it relied on Article I powers of taxation. Those who passed these laws did so believing they were exercising their power of taxation, rather than Commerce Clause authority. “The Congress also tried to utilize the Postal Clause to limit the selling of goods across state lines, to which the Supreme Court struck the statutes down as an unconstitutional attempt to use the Commerce Clause to enact police regulation, relating exclusively to the internal trade of the States. Suitably chastened, Congress did not repeat the mistake.” In regard to the Congress’s ability to restrict or prohibit the importation or exportation of goods in the exercise of foreign commerce, this power has always been understood to be an enumerated power of the Congress. Following the ratification of the Constitution, Congress passed what Hamilton referred to as, “prohibitory regulations.” For example, in 1794, Congress passed a law prohibiting the export from the United States, “any cannon, musket, pistol, bayonets, swords, cutlasses, musket balls, lead, bombs, grenades, gunpowder, sulfur, or salt petre. In 1806, Congress banned the importation of silk, leather, hemp, tin, or brass goods from Great Britain. In 1807, Congress banned the importation of slaves, effective January 1, 1808.” Friedman suggests, “Where prohibitions targeted foreign trade which was likely to affect domestic commerce, Congress expressly carved out exemptions for those engaged in interstate trade. Hence a provision of the Embargo Act, exempted from it’s prohibitions any ships that engaged in purely domestic trade. The only caveat was that the owner had to give bond to guarantee the ship’s cargo would be re-landed in a port of the United States.” By the late nineteenth century, industrialization and nationalization of the market put increased pressure on Congress to enact commercial regulations. Industrialization created economic growth, but conceived serious challenges to the state’s systems of regulation which clashed with one another. Become a member and support the TAC! When Congress responded to these challenges, it largely adhered to the original understanding of the interstate commerce power, as more limited in scope than the foreign commerce power. Congress passed a number of bills prohibiting the import and export of adulterated or otherwise inferior food and drugs, but it refused to similarly regulate the domestic food and drug markets. This reluctance was due to state’s rights opponents arguing this type of legislation was an overreach of federal power under the Commerce Clause. Congress did pass legislation which was “in service” of the well-being of the federal economy and the economy of the states. An example of this type of legislation was the Animal Industry Act, “which banned the transport of diseased cattle across state lines. The purpose of the Act was to ensure the great transcontinental railway, and their network of branches, did not threaten the health of the domestic cattle industry by carrying disease to all of the states.” “In service laws” and “helper laws” of these types established a lineage throughout time as justifiable and constitutional provisions of the interstate commerce clause. Friedman completes the founding partition on the history and lineage of the commerce clause stating, “Throughout the nineteenth century, Congress adhered to the view that it’s power over interstate commerce did not include the power to prohibit that commerce, at least when doing so was not an in-service law necessary to conserve the safety and well-being of channels of interstate commerce, or a helper law necessary to help ensure the effectiveness of state policy making. Views on these limitations were about to change, however, in the aftermath of the Supreme Court’s decision in Champion v. Ames.” Limiting the Commerce Power by Tenth Amendment Center NEXT STEPS donate-now-button button-subscribe button-take-action About Latest Posts Ronald Martin Ronald Martin is a family historian, whose lineal descent has ties to America's Anti-federalists (The True Federalists) . An advocate for an individual's Life, Liberty, and the Pursuit ofHappiness and Property, while exercisingfreedom of religion.Ronald is also an advocate for state sovereignty, protected by the provisions of the Tenth Amendmentwhich limits the strength and supremacy, of all federal infringements on, We the People. Ronald resides in his native Colorado with his wife and family. 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#1. To: tpaine (#0)
To regulate = to make regular. To make consistent and ease restrictions, not install choke points and control one thing or another to favor a friend, or punish an enemy.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
To regulate = to control by means of rules and regulations. Commerce, in it's natural state, is free and unencumbered. Regulation, therefore, only serves to restrict it. Does regulation include prohibition? Of course it does. President Jefferson used this power to prohibit trade with foreign nations (Jefferson's Embargo of 1807) and to prohibit the sale of alcohol to the Indian tribes (Trade and Intercourse Act of 1802). Keep in mind that James Madison -- the author of the Commerce Clause -- was Jefferson's Secretary of State and surely would have advised his President that "to regulate" did not include "to prohibit". But he didn't. The author above says that "to regulate" does include prohibition -- but only with foreign nations. What a bunch of bullshit. If that were true, then certainly the Commerce Clause would have been written differently.
Misterwhite opines: --- Keep in mind that James Madison -- the author of the Commerce Clause -- was Jefferson's Secretary of State and surely would have advised his President that "to regulate" did not include 'restricting it among the States'. As usual, paulsen/white, faced with the logical explanations of the author above, is reduced to muttering bullshit. As the author noted, the clause was written just fine, -- until progressives (like white) had to find an excuse to prohibit ANYTHING they pleased. (Note: -- don't expect any more discussion on the issue from the coward misterwhite, he's long been satisfied with spreading his agitprop bullshit, and then slinking away).
To regulate = to make regular. To make consistent and ease restrictions, not install choke points and control one thing or another to favor a friend, or punish an enemy. Excellent reasoning...
“I always foresaw difficulties might be started in relation to the interstate commerce power. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government Nice find! I missed that the first time through. A government strong enough to impose your standards is strong enough to ban them. More from the original paper (http://ow.ly/ZJHd304JSmo): "But as late as 1886, a report prepared by the House Judiciary Committee could assert that a proposed bill to ban the interstate sale of oleomargarine was “plainly unconstitutional” and declare itself entirely ignorant of any arguments to the contrary. As the report explained (and it is worth reading this carefully): "'Your committee are not aware that it has ever been asserted for the power to regulate commerce that it involved a power to prohibit the free transportation of the products of each State through and into every other; and it could hardly have been within the minds of the framers of the Constitution to give to Congress the power to do so, when history shows that the purpose of giving the power to Congress and taking it from the States was to prevent the very result which this construction of the clause would involve and bring about.... "'It may be within the meaning of this clause such needful regulations as to articles transported from State to State as will conserve the safety and well-being of the transportation, but the right to say what articles shall and what shall not be the subject of commerce is not included in the regulation of the commerce in such articles.'" A government strong enough to impose your standards is strong enough to ban them. He was referring to the power to impose tariffs.
He was referring to the power to impose tariffs. Have you been huffing paint thinner again? A government strong enough to impose your standards is strong enough to ban them. Their "assertion" was never tested in the courts because Congress never passed a law to ban the interstate sale of oleomargarine. Instead, they singled out and taxed this one product. I'm sure Justice Roberts would agree.
Read the entire letter: http://founders.archives.gov/documents/Madison/99-02-02 02-1698 If I have to educate you I want a credit card number from you first.
So what? It was a congressional statement about the limits on their own authority - and a statement against interest, at that. A government strong enough to impose your standards is strong enough to ban them. He was referring to the power to impose tariffs. No, the staring point of his letter (working link: founders.archives.gov/documents/Madison/99-02-02-1698) is the misuse of some argument of his by Hamilton while trying to show "that the power to regulate commerce, did not embrace the tariff power"; this does not mean that his later statements about the interstate commerce power are limited to tariffs. His conclusion clearly goes beyond those bounds: the interstate commerce power "was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government". A government strong enough to impose your standards is strong enough to ban them. Oh, please. What do they know? Two years earlier, in 1884, "the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden."
That's regulation - exportation or shipment in interstate commerce of livestock NOT having any infectious disease remained hunky-dory. A government strong enough to impose your standards is strong enough to ban them. The importing states paid higher prices because of the tariff. So whenever they they shipped to a non-importing state they added a tax (call it an interstate tariff) to make up for the "injustice". But tariffs are supposed to go to the "General Government" and should not to be used this way by the states.
Looks like prohibition to me. So Congress can prohibit the interstate commerce of oleomargarine as long as they allow butter?
Looks like prohibition to me. I'm sure it does. To rational people it looks like what it is: regulation. So Congress can regulate the interstate commerce of oleomargarine to exclude diseased oleomargarine as long as they allow undiseased oleomargarine. Once again, glad I could clear that up for you. A government strong enough to impose your standards is strong enough to ban them. But tariffs are supposed to go to the "General Government" and should not to be used this way by the states. Which is "the abuse of the power of the importing states in taxing the non-importing" against which the federal interstate commerce power "was intended as a negative and preventative provision" - that power still NOT being "a power to be used for the positive purposes of the General Government" such as combating the negative effects of drug use. A government strong enough to impose your standards is strong enough to ban them. Ah. Now I remember. He's referring to what Chief Justice Marshall called the "dormant (or negative) commerce clause". Unlike regulating commerce with foreign nations, Congress was not needed to pass laws regulating all the commerce between the states. The states themselves could resolve their interstate commerce squabbles in the courts, given that the commerce clause implies that a state cannot impede interstate commerce. So, Madison is saying the states themselves could remediate their issues rather than having the General Government do so -- in which alone, however, the remedial power could be lodged. Important point. The federal government retained the power to make these interstate commerce decisions and they could remediate these cases if they wanted.
They had the power to remediate abuses in restraint of interstate commerce, like states imposing taxes on it - it doesn't follow that they had the power to restrain interstate commerce to combat the "abuse" of one state allowing within its borders something (booze, fireworks, pot) that another state disallowed. A government strong enough to impose your standards is strong enough to ban them. Let's see. 1776 + 115 = 1891. That claim seems questionable. It seems undoubted that they had the authority to ban goods that crossed state lines. http://tenthamendmentcenter.com/2013/08/10/to-regulate-not-prohibit/ What is presented in the thread article is not the paper authored by Friedman and Lakier. It is a blog article by Ronald Martin at the Tenth Amendment Center. "To Regulate," Not "To Prohibit: Limiting the Commerce Power Barry Friedman and Genevieve Lakier, April 2013, New York University School of Law. This is the Friedman and Lakier paper. At the outset, the paper in footnote 1 contains the curious comment, Whatever could that something be? Why are we left to guess? Perhaps a longer quote will provide not only context, but directly answer the question! It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention [22 U.S. 195] been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself. But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. Nowadays, the airways pass over every state and there are airports. In 1824, the Court made clear in Gibbons that the commerce clause applied to activity that was "in any manner connected with commerce ... among the several states." And said power "may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. It is just on the next two pages of Gibbons, so why not quote some of it? Chief Justice John Marshall in Gibbons v. Ogden, 9 Wheat. 1, 196-97 (1824): It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, as prescribed is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would, be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. The power of Congress, then, comprehends navigation; within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with "commerce with foreign nations, or among the several States, or with the Indian tribes." It may, of consequence, pass the jurisdictional line of New-York, and act upon the very waters to which the prohibition now under consideration applies. On 28 February 1803 (2 Stat. 205), Congress was able to exercise its commerce clause power to prohibit the importation of slaves into any State which, itself, prohibited such importation. In 1808, the constitutional restriction at Article 1, Section 9, Clause 1 was lifted by the Act of March 2, 1807 (2 Stat. 426) The Act of March 2, 1807 states: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the first day of January, one thousand eight htmdred and eight, it shall not be lawful to import or bring into the United States or the territories thereof from any foreign kingdom, place, or country, any negro, mulatto, or person of colour, with intent to hold, sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour. Sec. 2. And be it further enacted, That no citizen or citizens of the United States, or any other person, shall, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight, for himself, or themselves, or any other person whatsoever, either as master, factor, or owner, build, fit, equip, load or otherwise prepare any ship or vessel, in any port or place within the jurisdiction of the United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of procuring any negro, mulatto, or person of colour, from any foreign kingdom, place, or country, to be transported to any port or place whatsoever, within the jurisdiction of the United States, to be held, sold, or disposed of as slaves, or to be held to service or labour: and if any ship or vessel shall be so fitted out for the purpose aforesaid, or shall be caused to sail so as aforesaid, every such ship or vessel, her tackle, apparel, and furniture, shall be forfeited to the United States; and shall be liable to be seized, prosecuted, and condemned in any of the circuit courts or district courts, for the district where the said ship or vessel may be found or seized. [...] In a footnote to Section 7 at 2 Stat. 428-29, the statute states: In 1808, slaves as property was perfectly lawful and constitutional. The owners were legally considered to hold property rights to their labor. As a commodity, their importation, sale or trade was subject to the commerce clause power of the Constitution granted to Congress. Gibbons at 205-07: [22 U.S. 206] interfere with, and be affected by the laws of the United States, made for the regulation of commerce, Congress, in that spirit of harmony and concilitation, which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the States bear to each other, has directed its officers to aid in the execution of these laws; and has, in some measure, adapted its own legislation to this object, by making provisions in aid of those of the States. But, in making these provisions, the opinion is unequivocally manifested, that Congress may control the State laws, so far as it may be necessary to control them, for the regulation of commerce. The act passed in 1803,93 prohibiting the importation of slaves into any State which shall itself prohibit their importation, implies, it is said, an admission that the States possessed the power to exclude or admit them; from which it is inferred, that they possess the same power with respect to other articles. If this inference were correct; if this power was exercised, not under any particular clause in the constitution, but in virtue of a general right over the subject of commerce, to exist as long as the constitution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious, that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of [22 U.S. 207] Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude, for a limited period. The words are, ‘the migration or importation of such persons as any of the States, now existing, shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808. The whole object of the exception is, to preserve the power to those States which might be disposed to exercise it; and its language seems to the Court to convey this idea unequivocally. The possession of this particular power, then, during the time limited in the constitution, cannot be admitted to prove the possession of any other similar power. - - - - - - - - - - In 1942, Wickard clearly stated, "At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded," and proceeded to state lines of cases had served "to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden. And Wickard also reminded that Gibbons observed of the commerce power that, "nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes." Wickard v. Filburn, 317 U.S. 119-22 (1942) The Government's concern lest the Act be held to be a regulation of production or consumption, rather than of marketing, is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as "production," "manufacturing," and [p120] "mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only "indirect." [n16] Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as "production" and "indirect" and foreclose consideration of the actual effects of the activity in question upon interstate commerce. At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194-195. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes. Id. at 197. [p121] For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause, and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period, there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision, the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as "production," "manufacturing," and "mining" were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause. [n17] It was not until 1887, with the enactment of the Interstate Commerce Act, [n18] that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act [n19] and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder. When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but [p122] little scope to the power of Congress. United States v. Knight Co., 156 U.S. 1. [n20] These earlier pronouncements also played an important part in several of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power. [n21] Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden, supra. Wickard identifies a return to the power expressed in 1824.
You're rewriting the Commerce Clause. They retained the power to regulate interstate commerce. And regulation includes prohibition.
Numbnuts is concluding that if Congress didn't use the power that meant they didn't have the power. For the first 100 years or so, interstate commerce squabbles were resolved in the courts, by the states themselves, applying the principles of the dormant commerce clause.
Exactly.
Important point. The federal government retained the power to make these interstate commerce decisions and they could remediate these cases if they wanted. -- misterwhite They had the power to remediate abuses in restraint of interstate commerce, like states imposing taxes on it - it doesn't follow that they had the power to restrain interstate commerce to combat the "abuse" of one state allowing within its borders something (booze, fireworks, pot) that another state disallowed.---- ConservingFreedom Good rebuttal, but you failed to nail numbnuts on his effort to get the General Government replace our court system.. Important point.
For the first 100 years or so, interstate commerce squabbles were resolved in the courts, by the states themselves, applying the principles of the dormant commerce clause. --- misterwhite Exactly. ---- nolu chan YEP, If Congress didn't use the power that meant they didn't have the power. As the article explains in detail, Congress invented the power in order to further progressive socialist aims. Perhaps, with the election of Trump, we can start to reverse those socialistic aberrations you and Paulsen advocate.
That's exactly what's called into question by Madison's statement: "Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it [the interstate commerce power]. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government". A government strong enough to impose your standards is strong enough to ban them. Madison's statement calls into question the power to prohibit commerce? I don't read that anywhere. Perhaps you can explain.
Madison said the purpose of the interstate commerce power was to prevent injustices such as the importing states taxing the non-importing - an end not served by prohibiting commerce.
A government strong enough to impose your standards is strong enough to ban them.
#2. To: jeremiad (#1)
"To regulate = to make regular."
#3. To: misterwhite, progressive prohibitionist (#2)
To regulate = to control by means of rules and regulations. Commerce, in it's natural state, is free and unencumbered. Regulation, therefore, only serves to restrict it.
Does regulation include prohibition? Of course it does. President Jefferson used this power to prohibit trade with foreign nations (Jefferson's Embargo of 1807) and to prohibit the sale of alcohol to the Indian tribes (Trade and Intercourse Act of 1802). --- The author above says that "to regulate" does include prohibition -- but only with foreign nations. What a bunch of bullshit.
If that were true, then certainly the Commerce Clause would have been written differently.
#4. To: jeremiad (#1)
#5. To: tpaine, misterwhite (#3)
In a letter written to a Virginia senator, Joseph Cabell, Madison made his views unambiguous: the interstate and foreign commerce clauses were not intended, nor construed, to vest in Congress equivalent powers when regulating domestic and foreign commerce.
#6. To: tpaine, misterwhite (#5)
#7. To: ConservingFreedom (#5)
#8. To: misterwhite (#7)
“I always foresaw difficulties might be started in relation to the interstate commerce power. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government
#9. To: ConservingFreedom (#6)
#10. To: ConservingFreedom (#8)
#11. To: misterwhite (#9)
Their "assertion" was never tested in the courts
#12. To: misterwhite (#7)
(Edited)
“I always foresaw difficulties might be started in relation to the interstate commerce power. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government"
#13. To: ConservingFreedom (#11)
"It was a congressional statement about the limits on their own authority"
-- Act of May 29, 1884 23 Stat. 31
#14. To: misterwhite (#13)
Two years earlier, in 1884, "the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden."
#15. To: ConservingFreedom (#12)
(Edited)
#16. To: ConservingFreedom (#14)
That's regulation
#17. To: misterwhite (#16)
"That's regulation - exportation or shipment in interstate commerce of livestock NOT having any infectious disease remained hunky-dory."
So Congress can prohibit the interstate commerce of oleomargarine as long as they allow butter?
#18. To: misterwhite (#15)
The importing states paid higher prices because of the tariff. So whenever they they shipped to a non-importing state they added a tax (call it an interstate tariff) to make up for the "injustice".
#19. To: ConservingFreedom (#18)
"Which is "the abuse of the power of the importing states in taxing the non-importing" against which the federal interstate commerce power "was intended as a negative and preventative provision" - that power still NOT being "a power to be used for the positive purposes of the General Government" such as combating the negative effects of drug use".
#20. To: misterwhite (#19)
The federal government retained the power to make these interstate commerce decisions and they could remediate these cases if they wanted.
#21. To: tpaine, misterwhite (#0)
“At the Founding, and roughly 115 years thereafter, the dominant view was that Congress did not possess the authority to ban goods merely because they crossed state lines.”
Gibbons v. Ogden, 22 US 1, 194-95 (1824) ("The enumeration [in the Commerce Clause] of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated.")
The subject to which the power is next applied, is to commerce ‘among the several States.’ The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.
We are now arrived at the inquiry — What is this power?
Chap. XXII.—An Act to prohibit the importation of Slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight(a)
The offence against the laws of the United States under the 7th section of the act of 1807, is not that of importing or bringing into the United States, persons of colour, with intent to hold such persons as slaves, but that of hovering on the coast of the United States with such intent. And although it forfeits the vessel and any goods or effects found on board, it is silent as to disposing of the coloured persons found on board, any further than to impose a duty upon the officers of the armed vessels who make the capture to keep them safely to be delivered to the overseers of the poor, or the governer of the state, or persons appointed by the respective states to receive them. United States v. Preston, 3 Peters, 57.
The acts of Congress, passed in 1796 and 1799,92 empowering and directing the officers of the general government to conform to, and assist in the execution of the quarantine and health laws of a State, proceed, it is said, upon the idea that these laws are constitutional. It is undoubtedly true, that they do proceed upon that idea; and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowledgment that a State may rightfully regulate commerce with foreign nations, or among the States; for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged power of a State, to provide for the health of its citizens. But, as it was apparent that some of the provisions made for this purpose, and in virtue of this power, might
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are, at most, "indirect." In answer, the Government argues that the statute regulates neither production nor consumption, but only marketing, and, in the alternative, that, if the Act does go beyond the regulation of marketing, it is sustainable as a "necessary and proper" [n15] implementation of the power of Congress over interstate commerce.
#22. To: ConservingFreedom (#20)
"They had the power to remediate abuses in restraint of interstate commerce"
#23. To: nolu chan (#21)
#24. To: misterwhite (#23)
For the first 100 years or so, interstate commerce squabbles were resolved in the courts, by the states themselves, applying the principles of the dormant commerce clause.
#25. To: ConservingFreedom, numbnuts, Y'ALL (#22)
Madison is saying the states themselves could remediate their issues (IN COURT) rather than having the General Government do so -- in which alone, however, the remedial power could be lodged. (NO, the remedial power was in the court system, ,not the General Government)
#26. To: nolu chan, numbnuts, Y'ALL (#24)
---- if Congress didn't use the power that meant they didn't have the power.
#27. To: misterwhite (#22)
They retained the power to regulate interstate commerce. And regulation includes prohibition.
#28. To: ConservingFreedom (#27)
"That's exactly what's called into question by Madison's statement"
#29. To: misterwhite (#28)
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