Commerce Clause - Uniformity

[Lynne Henderson]

The states-as-laboratories idea was not present in 1789 as nearly as I have
been able to ascertain. Maybe I'm wrong.   The states were either separate
sovereigns entering into a tighter compact than the articles of
Confederation allowed, or the states would be subordinated to a new entity,
at least as to the enumerated powers-- and conditions weren't really arguing
for continuation of the Confederation as I understand it. The federalists of
*that* era wanted a strong national government, which is of course what had
the states fretting. In any event, states gave up something in the
constitution that they had had before--at least if one agrees with Rakove's
analysis in *Original Meanings*.
    The brilliance of *McCulloch* is Marshall's articulation of the
subordination of the states-qua-states to the whole People as represented by
congress.  Even though later events--the Jacksonian period/the Taney
court--moved away from this vision, it is difficult to say there is one and
only one intent or explanation that can be tied to the framers.  State's
rights increasingly played out over the ugly terrain of slavery, not
experimentation with many different laws and styles.
    The Civil War and the Civil War Amendments also arguably radically
changed the relation of the National and State governments.  I am with the
crowd who believes that states became subordinate to the federal government
as a result of that period in our history, as well as the exigencies of two
world wars and the Great Depression.
     I don't think there is a dispositive answer to this one--But I find it
peculiar that  members of the Court and others seem to  envision one country
as actually a bunch of little countries as a matter of some sort of
(unarticulated) principle, and it is a continuing puzzle to me why we would
want this situation to continue, unless our loyalties really are somehow
tied to individual states in some basic way. . . .
        Best,
           Lynne

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Bryan Wildenthal
Sent: Tuesday, September 12, 2000 4:26 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Commerce Clause - Uniformity


Prof. Henderson's arguments are thoughtful and may have merit, but they are,
of course, an argument for a unitary state and against the Constitution that
was adopted in 1789 and under which we still live.  The whole *point* of
federalism, in my understanding, is to allow for "multiple jurisdictions and
multiple laws."  States as "laboratories of democracy" and all that, per
Brandeis.  To be sure, this puts some burdens on citizens.  It also allows
for certain freedoms, and a healthy diversity and ferment in our politics.

See below for further comment on another particular point:

> -----Original Message-----
> From: Lynne Henderson [mailto:hendersl at IX.NETCOM.COM]
> Sent: Tuesday, September 12, 2000 3:09 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Commerce Clause - Uniformity
>
>
> Just a note from Nevada--Prostitution is *not* legal
> throughout the state;
> it is a county-by-county determination. Prostitution is not
> legal in the
> city of Reno, nor is it legal in Las Vegas as far as I
> know--but the Las
> Vegas strip, for example, is not in the city, so the city's
> rules do not
> apply to the strip.  So much for uniformity.
>      The vexing problem of multiple jurisdictions and
> multiple laws is one
> that argues against federalism IMHO, as "mistakes of law" are
> no defense in
> criminal cases, and merely crossing an invisible boundary can render a
> citizen guilty of serious offenses that are not offenses in
> their "home"
> states. Further, if one is arguing that diffrerent states can
> have different
> moral standards, it undermines national unity.  And the more
> identification
> with a state is emphasized, the more tendency of a state to
> seek to enact
> *saenz v. Roe*, *Shapiro v. thompson* and *edwards v. california*-type
> legislation.
> As for the "voting with one's feet" and moving presumption as
> a good, Leslie
> is overlooking the fact that moving is expensive monetarily
> and psychically,
> as well as in terms of meeting a whole new set of legal
> requirements in
> whatever state.  Simply saying it's "choice" or "preference"
> overlooks not
> only the costs to individuals, but also  the very real
> problem of multiple
> sovereigns in what is ostensibly one nation.

[Leslie can speak for herself, but I don't think she or I was "overlooking"
this.  Of course migrating is an expensive and difficult choice, and does
require one to pay attention to the laws of the new state to which one moves
-- but many choices are difficult and expensive, and no less valuable for
that.  The freedom to make such choices is one of the signature aspects of
being an American citizen, and one of the great things about our
constitutional structure in my opinion.

Bryan Wildenthal, Thomas Jefferson School of Law]

>  I have  yet to
> be  persuaded
> that devolution, the new federalism, etc. are a good idea,
> much less that
> the Court should be involved in returning us to an earlier era of
> state-federal relations.
> Best
> Lynne
>
> hendersl at ix.netcom.com
> Boyd School of Law-UNLV