General Jurisdiction of the US. and "commerce"

[Jeffrey T. Renz]

Michael McConnell wrote:

> Calvin Johson writes:
>
>         I suspect we have to start thinking of the general
> jurisdiction of
> the
> federal government as found in clause 1, "to provide for the common
> defence
> and general welfare" rather than in the commerce clause.  The Articles
> of
> Confederation allowed expenses for common defense and general welfare
> to be
> charged to common fund if 2/3 if the states approved and the C just
> got rid
> of the supermajority requirement.   There are lots of contemporaneous
> references where regulation and tax are used interchangeably, and no
> viable
> theory or argument of the time that nonspending activity by government
> was
> to be limited in ways in which spending activity would not.
>
> This is an extremely radical suggestion, based on rather slim
> historical
> evidence. I would like to hear more. Johnson asserts that there is "no
>
> viable theory or argument of the time that nonspending activty by
> government
> was to be limited in ways in which spending activity would not." I am
> not
> sure this is true even on its own terms (for example, early Presidents
>
> including Jefferson used the spending power to reward and punish
> newspapers,
> where they could not directly regulate). But mostly it seems to shift
> the
> burden of proof.  I would rather ask the question whether figures of
> the day
> argued that regulation and taxation should be treated the same way.
> Johnson
> says there are "lots" of contemporaneous references where the terms
> are used
> "interchangably." This is the sort of claim that needs to be unpacked.

    And this is an area in which Calvin and I disagree.  I have argued,
in "What Spending Clause?", that "duties, imposts, and excises" were
treated differently from "tax" before and during the Convention.
Throughout the Farmer's Letters Dickinson distinguished duties for
purposes of regulation from taxes for revenue, as well as duties for
regulation from duties (after all, he was attacking Townshend's duties)
for revenue.  During the Convention, on August 21, Clymer moves to amend
“No tax or duty shall be laid by the legislature on articles exported
from any state; nor on the migration or importation of such persons as
the several states shall think proper to admit; nor shall such migration
or importation be prohibited,” by adding “for the purposes of revenue”
after “duty.”  He argued that this would permit regulation of trade.  L.
Martin supports it as permitting regulation of the slave trade.  V
Elliot 456-457.  While the amendment failed, it demonstrates that the
members of the Convention, like their colleague Dickinson, distinguished
duties as regulatory from duties for revenue as different species.

    We see it again in Art. I-7-1.  What originates in the House?  "All
Bills for raising Revenue. . . ."  Not all tax bills or all taxes,
impost, duties, or excises.  Why the House?  Because it was elected by
the people.  And, as the Colonists argued in 1765, and as Dickinson
argued a few years later, taxes (revenue) are "free gifts of the people"
to the sovereign, to be given only with their consent or that of their
representatives.  Duties (for regulation) on the other hand, are not
revenue measures and thus not mentioned.  This is consistent with the
views stated in Dickinson's arguments, the Stamp Act Resolutions, and
the Declarations and Resolves of the First Continental Congress that
Parliament had the right (power) to impose duties for regulation, but
lacked the right to levy on the colonies taxes or duties for purposes of
"raising a revenue."

    Art. I-8-1's proviso, the uniformity clause, omits reference to
taxes, which leads me to believe that uniformity was required without
regard to whether the duties, imposts, or excises were intended for
revenue or regulation.  Taxes, on the other hand were not subject to the
uniformity clause.  So are all duties taxes?  It's like parallelograms,
rectangles, and squares.  I think that in terms of the Constitutional
language we must conclude "yes."  Are all taxes duties?  No.  Are all
duties for revenue?  Again, no.

    Can government regulate by means of duties?  Yes.  Is this a plenary
power?  Again, yes.  Is it unlimited?  No.  It is limited by the
uniformity, ports, general welfare, and exports clauses.

    Jeff Renz