Police Power Query

Wed Aug 17 19:26:54 PDT 2005

People were restored to the commerce clause at least by the time of Edwards v. California in WW II.

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Paul Finkelman
Sent: Wed 8/17/2005 4:15 PM
To: Earl Maltz
Cc: conlawprof at lists.ucla.edu
Subject: Re: Police Power Query

except that Gibbons says that people were commerce; second, the briefs
and arguments discussed the SOuth Carolina black seamen's acts; third,
it is pretty obvious that the law in Miln violated the commerce clause
and was not in any way a regulation of local police issues as understood
by Marshall or understood at the time. 4th, the migration and
importation clause (Art. I, sec. 9) reccognized people as commerce and
allowed the states to regulate it until 1808, when COngress then had the
power to do so.  It is hard to imagine, given Art. I, Sec. 9, how anyone
  could argue before Miln that people were not part of commerce; and of
course as I noted, the attorneys in the case states that if NY could nto
regulate immigrants that SC could not regulate black seamen. Surely,
eveyone understood that there was a clear commerce clause issue when
states like SC arrested British citizens who were sailors on merchant
ships, when those ships entered a southern port. Only by inventing this
doctrine could the Court somehow avoid the obvious:  that SC was
interefering with international commerce and undermining US foreign
policy with its black seamen's laws.

Paul FInkelman

Earl Maltz wrote:
> With due respect, I think that Paul's account is improbable.  Without
> question, the Southern justices were aware that cases such as Miln had
> implications for the ability of the slave states to control the ingress
> of free African-Americans, as well as the interstate slave trade.  But
> there was no need to invent the concept of the police power to create
> the necessary legal regime.  One could, as the majority opinion did in
> Miln, simply take the view that the movement of people was not
> commerce--thereby perforce leaving the states free to deal with such
> movement as they wished.  Alternatively, one could argue (as I believe
> that Wayne did in The Passenger Cases) that the movement of slaves and
> free blacks was simply different from other problems for constitutional
> purposes.
>
> At 01:28 PM 8/17/2005 -0500, Paul wrote:
>
>> That's my story, and I'm sticking to it;  the Taney Court invented the
>> police powers doctrine to reassure the South that it could control its
>> "domestic instiutions" as southerns quaintly referred to slavery. 
>> This was also connected to the black seamen's laws in the southern
>> coastal states.  Attorneys in Miln discussed the need of South
>> Carolina to be able to prevent the entry into their prots of free
>> blacks sailors from the US and the British Empire.
>>
>> Paul Finkelman
>>
>> Bob Sheridan wrote:
>>
>>> You might find "The United States Supreme Court, The Pursuit of
>>> Justice," edited by Christopher Tomlins (Houghton Mifflin, 2005) of
>>> interest.  The article on the Taney Court by one Paul Finkelman has
>>> it that the doctrine was newly invented in New York v. Miln (1837)
>>> "to allow states to regulate aspects of interstate and international
>>> commerce carried on within their own jurisdictions, as long as
>>> Congress had not regulated the activity."  There are other references
>>> in articles on later courts as the likes of Holmes deals with the
>>> police power.
>>> rs
>>> John Parry wrote:
>>>
>>>> I'm looking for good discussions of the state "police power" to
>>>> protect health, safety, and welfare.  In particular, I am looking
>>>> for treatments that have a strong historical component -- that is,
>>>> what the police power has meant at different times (and in
>>>> particular, has the conception of what a state legitimately might
>>>> want to regulate morphed or expanded in any way?).
>>>>
>>>> Any suggestions?  On or off list replies are fine by me.
>>>>
>>>> (and now, back to the Iraqi constitution . . . long may it reign)
>>>>
>>>> ********************************************
>>>> John T. Parry
>>>> Visiting Professor, Lewis & Clark Law School
>>>> Associate Professor, University of Pittsburgh School of Law
>>>> 503-768-6888
>>>> parry at lclark.edu <mailto:parry at lclark.edu>
>>>> *********************************************
>>>>
>>>>
>>>> ------------------------------------------------------------------------
>>>>
>>>>
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>>>
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>>
>>
>>
>> --
>> Paul Finkelman
>> Chapman Distinguished Professor
>> University of Tulsa College of Law
>> 3120 East 4th Place
>> Tulsa, Oklahoma  74104-2499
>>
>> 918-631-3706 (office)
>> 918-631-2194 (fax)
>>
>> paul-finkelman at utulsa.edu
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
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>>
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>
>

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu

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