Wickard and Gibbons -correction

[Barksdale, Yvette]

sorry everyone
i should have written "1793 coasting act"
yb



*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The  John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:)  7barksda at jmls.edu
*****************************************************


> ----------
> From:         Barksdale, Yvette
> Reply To:     Discussion list for con law professors
> Sent:         Friday, November 15, 2002 3:02 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Wickard and Gibbons
>
> When I was preparing my Gibbons discussion this year, I decided to look
> into
> a little this 1787 coastal act - that was at issue in the case that
> required
> a federal license for the coastal trade. (Don't ask me why - i got a bee
> in
> by bonnet over this, for some strange reason)
>
> Appararently, this particular coastal act requiring a federal license for
> the coastal was clearly in the contemplation of the framers as a federal
> statute, because the american vessels were under heavy competition from
> foreign vessels for the coastal trade (Atlantic oceans ).
>
> Accordingly, as i understand it, there was not much doubt that the
> national
> commerce power included the power to regulate the coastal trade generally
> (despite the self-serving of litigation counsel), and thus extended to
> "navigation" .
>
> The real issue in Gibbons - was 1) whether the statute extended to the
> ferry
> route  between Elizabeth Town New Jersey and  New York (which, as far as I
> could see from a contemporary map, would have gone through long island
> sound,  a body of water which  connected to atlantic ocean, but largely
> within state waters.)  2) Whether or not the statute was intended to
> preempt
> state regulation of navigation within their own waters, as opposed to
> simply
> requiring vessels who were within those waters, if covered by the statute,
> to have an American license, 3) If so, was this regulation of interstate
> or
> intrastate commerce.
>
> Thus, I don't think it is at all true that the framers did not contemplate
> that federal regulation of interstate commerce would include regulation
> over
> navigation, (and other matters which were the infrastructure for
> interstate
> commerce), since navigation problems were some of the commercial problems
> which were vexing the articles of confederation government.
>
> IF I'm wrong on this history, please let me know.
>
> yb
>
>
>
> *********************************************
> Professor Yvette M. Barksdale
> Associate Professor of Law
> The  John Marshall Law School
> 315 S. Plymouth Ct.
> Chicago, IL 60604
> (312) 427-2737
> (email:)  7barksda at jmls.edu
> *****************************************************
>
>
> > ----------
> > From:         Sanford Levinson[SMTP:SLevinson at MAIL.LAW.UTEXAS.EDU]
> > Reply To:     Discussion list for con law professors
> > Sent:         Friday, November 15, 2002 1:44 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: Wickard
> >
> > Marshall is always useful, of course, though I'm not clear that an 1824
> > opinion by a highly ideological judge should be taken as dispositive
> about
> > the audience meaning of "commerce" some 35 years earlier. And it can't
> be
> > denied, as Epstein and Thomas have argued, that much 18th century
> writers
> > believed they were referring to separate phenomena when they used the
> > words
> > "commerce," "navigation," "agriculture," and "manufacturing."  This is
> > certainly true of much of Madison's own writing.
> >
> > sandy
> >
>