commerce clause question
laycockd at umich.edu
Fri Mar 30 14:00:49 PDT 2007
But it wasn't surplusage in1787, when no goods could (or ever had,
or ever would as far as they knew) move faster than a horse, and when
it was cheaper to ship goods to England by sea than to ship them 30
miles over land.
Quoting "David M. Wagner" <daviwag at regent.edu>:
> I agree with Prof. Laycock's post, but would like to add that
> question -- what do the OTHER enumerated powers really add now that
> the post-Wickard, post-Raich Commerce Clause -- is itself of some
> the debate over the original understanding of the Commerce Clause.
> I.e., for Darby and Wickard to be right, and if we don't want to
> originalism altogether, then we have to assume the Framers put an
> of surplusage into Art. I Sec. 8. That seems unlikely as an
> matter, and besides, isn't there a "canon" against reading
> language (and constitutional language a fortiori) as surplusage?
> David M. Wagner
> Regent University School of Law
> Virginia Beach, VA
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas
> Sent: Wednesday, March 28, 2007 6:24 PM
> To: conlawprof at lists.ucla.edu
> Subject: Re: commerce clause question
> Probably also the power to tax, maybe the power to borrow, and the
> raise an army and navy, declare war, to make rules for the
regulation of the
> land and naval forces, to provide for calling forth the militia and
> arming and governing them. All those activities surely affect
> but it is hard to describe them as regulating commerce.
> Some powers avoid arguments; Congress can regulate DC without
> anyone to show an affect on commerce.
> Some of the more specific powers come with their own limitations
> presumably not overruled by the commerce power. Bankruptcy laws
> uniform; patents and copyrights must be for limited times. The
> that one out, but not because of the Commerce Clause (or at least
> Remember too that most of the expansion of the Commerce Clause
> changes in facts on the ground. The economic integration of the
> rendered by steamboats, railroads, telegraphs, telephones, radios,
> televisions, and the Internet progressively obliterated any viable
> distinction between local and interstate commerce.
> Quoting Ilya Somin <isomin at gmu.edu>:
>> I am no big fan of the modern interpretation of the Commerce
>> and it is indeed true that it renders most of the rest of
>> enumerated powers irrelevant or superfluous. However, one
>> power that probably isn't superfluous is the Spending Clause. The
>> Commerce Clause gives Congress the power to "regulate" by imposing
>> costs on the private sector (and perhaps on state governments) but
>> not the power to spend money. We need the Spending Clause for the
>> latter, even under the most expansive modern interpretations of
>> Ilya Somin
>> Assistant Professor of Law
>> George Mason University School of Law
>> 3301 Fairfax Dr.
>> Arlington, VA 22201
>> ph: 703-993-8069
>> fax: 703-993-8202
>> e-mail: isomin at gmu.edu
>> Website: http://mason.gmu.edu/~isomin/
>> SSRN Page: http://ssrn.com/author=333339
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109-1215
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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