FW: On the modesty of the commerce clause

[Calvin Johnson]

om: Calvin Johnson
Sent: Sun 6/12/2005 12:58 PM
To: jon.roland at constitution.org; Marty Lederman
Cc: Blumstein, James; David Bernstein; David Cruz; David M. Wagner; Earl
Maltz; forwarding for fcross; Ilya Somin; JMHACLJ at aol.com; John Noble;
John Parry; Lawrence Solum; Marci Hamilton; Mark Graber; Mark Tushnet;
Miguel Schor; Richard D. Friedman; Samuel Bagenstos; Sanford Levinson;
Scott Gerber; Douglas Laycock
Subject: On the narrowness of the commerce clause


Do not forget the Founders removed the "expressly delegated" limitation
in Arit. II of the Articles of Confederation because it had proven to be
"destructive to the Union."  Plus they wanted the passport, which was
not enumerated.   The language of the Constitution was mere dressing
written by committees called Committee on Detail and on Style to capture
the binding resolutions.  The binding Resolution of the Convention upon
which federal domain was based was that Congress would have the powers
it had under the Articles, plus the power to legislate for the general
interests of the Union.   Enumeration was voted down, overwhelmingly.
Mason and Randolph (the latter on the Committee of Detail) voted against
the Constitution on the ground that gave the new national government a
general power that might swallow the states.   The Constitution as
drafted makes sense as loyal to the governing Resolution.   
          The Commerce Clause is even narrower than you think: it
applies only to deep water shipping in the interests of mercantilist
economics and is just a cover for some mercantilist programs the
majority of the nation rejected even once COngress was empowered to
adopt them.  Of course the commerce clause can not cover services
orginally because services could not be put on a boat, nor could imports
of services be suppressed to perserve precisous specie, nor channelled
for the greater wealth of the nation.  It is just that the modesty of
the original commerce clause does not matter because it does not
describe the frontiers of the federal domain. 

________________________________

From: Jon Roland [mailto:jon.roland at constitution.org]
Sent: Sun 6/12/2005 9:16 AM
To: Marty Lederman
Cc: Blumstein, James; Calvin Johnson; David Bernstein; David Cruz; David
M. Wagner; Earl Maltz; forwarding for fcross; Ilya Somin;
JMHACLJ at aol.com; John Noble; John Parry; Lawrence Solum; Marci Hamilton;
Mark Graber; Mark Tushnet; Miguel Schor; Richard D. Friedman; Samuel
Bagenstos; Sanford Levinson; Scott Gerber
Subject: Re: The opinions in Ashcroft v. Raich



http://constitutionalism.blogspot.com/2005/06/thomas-comes-closest-in-as
hcroft-v.html

The decision in Ashcroft v. Raich (restyled Gonzalez v. Raich since
Alberto
Gonzalez succeeded John Ashcroft as U.S. Attorney General) is a setback
for
constitutional fidelity. Of all the members of the U.S. Supreme Court,
only
Justice Clarence Thomas came close to getting it right, and even he got
it
wrong on a few points.

For the decision see
http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html , and
particularly the dissent of Justice Thomas. While he gets the essentials
of
original understanding of the Commerce Clause nearly correct, he commits
the
first error in considering the original meaning of "commerce" to include
both "goods" and "services". My research, including recent research of
documents archived from the Founding Era, makes it clear that originally
it
included only tangible commodities, not services, and that the defining
attributes were (1) transfer of title; (2) transfer of location (from a
foreign nation or state to a different state in this nation); and (3)
transfer of possession; and all this (4) for a valuable consideration.

His second error is to accept the doctrine that the power to "regulate"
"implies" (authorizes) the power to "prohibit" or to impose criminal
penalties (deprivation of life, limb, or liberty). The power to regulate
originally meant only the power to restrict some modalities of
something,
not all modalities, and it only authorized the civil penalties of
deprivation of property or privileges.

The third shortcoming of his dissent is not to make it more clear that
the
delegation of a power is only authorization to make a certain kind of
effort, not to do whatever it might take to obtain an outcome. The
Necessary
and Proper Clause only makes sense, "for carrying into Execution", if
understood in this way. The express delegation of a power may only
define a
subject matter, but it should always be understood that the delegation
is
not plenary within the meaning of the subject matter, but is further
restricted to constitutionally legitimate public purposes, which if
exceeded
are abuses of discretion. The Constitution is not written to enable the
achievement of any or all of the purposes for which delegated powers
might
be exercised. If the effort authorized by the delegation is not
sufficient
to accomplish the purpose, it may be because the outcome is beyond the
competence of government, or it may mean the Constitution needs to be
amended to delegate additional powers, but it is not a legitimate remedy
to
expand powers to whatever extent the accomplishment of a desired outcome
may
require. That would be a formula for extending powers without limit in
every
subject area, because there are always outcomes that no delegation or
exercise of governmental powers can achieve.

See my article "Original Understanding of the Commerce Clause" at
http://www.constitution.org/col/02729_fed-usurp.htm.

-- Jon

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