Commerce Clause - Uniformity
lesl at UDEL.EDU
Wed Sep 13 10:52:47 PDT 2000
I agree that the disagreements can run deep. Where I disagree is in
your apparent(?--I can't really tell?) view that these bans on travel to
take advantage of another state's law are constitutional . I think it
is clear that they are not. A Delawarean can travel to Maryland to buy
cheaper liquor. Delaware cannot ban that. What they could ban I think
is bringing it back into the state of Delaware in a way that atttempts
to evade Delaware's own liquor duties (I don't know if such a ban
exists, but if it does it is not enforced at all). I do not think any
state could constitutionally (in the days when divorce was difficult)
have forbidden people to go to Las Vegas to get quickie divorces. I am
not sure that such use of interstate travel in and of itself makes the
regualting of divorce a legitimate federal power. Is this (i.e., that
it does) what you are arguing?
Douglas Laycock wrote:
> Diversity of policies in a federal system has benefits; it also has costs.
> We're speculating about political reactions here, but the problem I was
> pointing to requires a couple of factors to really come into play. One, it
> is not people who move to the more permissive state; it is people who,
> without changing their residence, travel to the more permissive state for
> the principal purpose of evading their home state's law. This is clearest
> when they go for the weekend and return; it is somewhat clouded in the
> suicide cases, where they never return. But I was hypothesizing that the
> family members do return.
> Two, it must be a deeply divisive issue that both sides really care about.
> The home state must care enough to enforce its laws and make the activity
> impossible at home. Texans don't go to Nevada to work as, or patronize,
> prostitutes, because there is ample opportunity to do both in Texas. There
> are intermitten arrests; the Austin police busted a state legislator in the
> session before last; but there is no political support for investing the
> kind of resources it would take to stamp out prostitution in Texas.
> The target of regulation must care enough to go to the other state to
> evade the law. I can't buy beer on Sunday morning, but that doesn't bother
> me in practice, and even if it did, no one would go out of state to evade
> it unless they lived right by the border.
> And the home state must care enough to politically react when that
> happens. Texans go to Nevada to gamble, and the state doesn't much care.
> The state runs a numbers racket itself, so the laws against gambling have
> come to be mostly about suppressing competition.
> On really deeply felt issues, some people care enough to travel and the
> states care enough to react. Pre Roe v. Wade, we had some high profile
> controversies about states trying to prevent women from going out of the
> state for abortions; there was a more recent case in Ireland. Virginia
> tried to prevent New York abortion providers from advertising in Virginia;
> that was struck down. We had a case in Missouri a few years ago where a
> family tried to take their dying patient to Minnesota, so that some form of
> care could be withheld. Missouri tried to prevent it. These reactions are
> real; you don't get such reactions to less deeply felt policy disputes.
> When these deep disagreements arise, one response for the less permissive
> states is to seek preemptive federal regulation.
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (phone)
> 512-471-6988 (fax)
> dlaycock at mail.law.utexas.edu
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