commerce clause and historicism
CJohnson at law.utexas.edu
Sun Apr 1 16:44:17 PDT 2007
There werent any significant interstate commerce clause issues in the 1787-88 debates. "Regulation of commerce" meant almost entirely suppressing foreign commerce. These were mercantilist times, not free trade times, and they were trying to preserve precious specie by suppressing imports. Regulation of commerce meant frist effectively taxing imports. Proponents of the Constitution wanted to nationalize the state imposts (import taxes) and prevent end runs around the impost. RI had opened its port without an impost when Boston tried to impose a high impost. NJ smuggling around the NY harbor impost was a problem. RI and NJ were considered to be unneighborly in undercutting the impost. Except in NY, nationalizing the impost was the single most pbvious and popular goal of the Constitution. A national impost could be enforced because as Hamilton put it, on the national level there was only one side to defend, the Atlantic.
There was also talk of creating American Navigation Act, giving a monopoly to US shipping, but nothing came of it US shipping came close to monopolizing the Atlantic trade anyway without any government regulation. There was talk of imposing penalty imports on Britain so she would lift her monopolies given to British shipping into the West Indies, but not much came of it and all ideas of it were dropped in the Jay Treaty of 1796.
There was a strong norm that a state was not supposed to impose taxes or regulations on an out of state Americans that it did nto impose on its own citizens. The state imposts almost uniformly exempted goods of American growth or manufacture. There were not significant toll charges on interstate commerce. The Articles of Confederation and the United We Stand ideal had already erased them. The only violation was a 1% tax Virginia imposed on everything coming into its ports without the regular exemption, but Va. was shamed into giving the regular exemption fro goods of American grown or manufacture and increasing the rate to 3% in early 1788. That's it. There is no other interstate commerce issue.
When Madison's notes described the commerce clause in his notes of the Philadelphia convention, he described it as "the clause on foreign commerce, etc." Trade with the Indians was within the etc as well and it too got no mention in any of the debates.
Original meaning, over and over again is trying to find great wisdom in tea leaves, and tea leaves put down for another prupose. This originalism junk is trying to find deep meaning for our times from a single word, "etc."
If were are going to be true to the original meaning we need to think of "commerce" as something to be suppressed or at least within a mercantilist tradition. Or if we include the Navigation Act debates, we need to think of the power over commerce as encoruaging Congress to adopt programs to grant or counter a monopoly on shipping to a favored few. Anything else is stuffing an alien past with our favorite 21st century values. Now of course I am not arguing that we need to be mercantilists or grant monopolies. It is just taht is what is there when we open up the history box with sincerity. If we are not opening up the history box with sincerity, then what do we think we are doing?
From: conlawprof-bounces at lists.ucla.edu on behalf of Douglas Laycock
Sent: Fri 3/30/2007 7:05 PM
To: Sean Wilson
Cc: conlawprof at lists.ucla.edu
Subject: Re: commerce clause question
I did not say, or at least did not mean to say, that there had been no changes in interpretation. But the changes in the facts on the ground have been enormous, and if today's interpretation of the Commerce Clause were projected back to 1787, there would still be a meaningful distinction between state and local commerce. Today there is not, and any attempt to create one is doomed to incoherence.
The changes on the ground are part of what drove the changes in interpretation. Economic and communication integration had enormous nationalizing consequences. So did the Civil War. So did the Sixteenth Amendment, and to a much lesser extent, the Seventeenth. So did the financial exhaustion of many state and local governments in the Great Depression. So too no doubt did modernity, as Sean says. These are forces of constitutional evolution and amendment; the resulting understanding of the commerce clause is not a usurpation.
An effects test makes more sense in the commerce clause than in the bankruptcy or post office clauses because local economies cannot protect.
I agree that there are still some things Congress can't do; I actually signed an amicus brief supporting Raich. But there isn't much that Congress can't do, and in today's world, that's a good thing.
Quoting Sean Wilson <whoooo26505 at yahoo.com>:
> Doug and David:
> I think there are two mistakes people can make about this issue. The
> first is to assume that the current interpretation of the commerce
> clause is simply an extension of the past into modernity, as if a
> pair of pants is taken out to fit a much larger waistline. It is not
> the case, for example, that the clause's power in agrarian society
> has simply been naturally extended into what is now a completely
> interdependent marketplace. To see why this is so, consider the
> 1. The mischief that gives life to the current regime could be used
> to do the same thing for any other enumerated power. For example,
> take the Post Office power. Doesn't the local consumption of wheat,
> in theory, if done in the aggregate -- and if Congress so finds by a
> rational basis test -- affect the Post Office somehow? Surely it has
> some affect on communications of some sort. Hence, the wheat
> regulation in Wickard is an exercise of the Post Office power. Does
> it affect Bankruptcy if Congress says it does or if you can theorize
> it in a hypothetical aggregate? Well then it must be a valid use of
> the Bankruptcy power. If it affects the tax and spending power, well
> then there you go. My point is this: in no way can a set of
> enumerated powers be lawfully discharged using a "hypothetical
> affect" or rational basis test. Go give your kid a list of
> responsibilities while you are away and see if you interpret
> compliance that way.
> 2. What is really being said here is not that the commerce clause has
> been "translated;" it is that Section 8 has been abandoned. But it
> has been abandoned not because the economy simply became more
> complicated or the world more interdependent -- but rather because
> the original configuration of power between the feds and the states
> could not survive in a post-agrarian world. It has nothing to do with
> economics per se; it has to do with modernity and society (a broader
> 3. But here is what my problem is: it does not follow that just
> because the original power configuration from agrarian society is no
> longer workable that there should not be SOME honest transition of
> unamended constitutional commands into the new world. Surely, there
> is SOMETHING meaningful that Congress cannot do under Section 8 that
> would allow both for more integrity to the words of law without
> threatening the operation of modern society. I can think myself of
> many innovative things to share here, but the mail is already too
> The second mistake people make in this area is to assume that this is
> about originalism. I am most surely not an originalist of even the
> language-game variety. This is an issue about whether you want
> "constitutionalism" in section 8 or a parliamentary kind of
> metaphysical constitution (constitution as fortitude in the polity or
> as an hegemony). It is an issue about being judicious (rather than
> licentious or clueless) about the translation of law into
> fundamentally changed circumstances. It is an issue about whether you
> want something more in American constitutionalism (in section 8)
> other than the fiction of law hiding behind an aggregation and
> rational-basis rhetoric. This is not good law, no matter that it is
> or is not "originalist."
> Dr. Sean Wilson, Esq.
> Penn State University
> Website: http://ludwig.squarespace.com/home/
> Email discussion group: http://groups.yahoo.com/group/TheLudwigGroup
> SSRN papers: http://ssrn.com/author=596860
> Conference papers: http://ludwig.squarespace.com/research-agenda/
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Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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