commerce clause question

[Douglas Laycock]

  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
Prof.Wilson's
> question -- what do the OTHER enumerated powers really add now that
we have
> the post-Wickard, post-Raich Commerce Clause -- is itself of some
force in
> 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
pitch out
> originalism altogether, then we have to assume the Framers put an
awful lot
> of surplusage into Art. I Sec. 8.  That seems unlikely as an
historical
> matter, and besides, isn't there a "canon" against reading
statutory
> 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
Laycock
> 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
powers to
> 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
for
> arming and governing them.    All those activities surely affect
commerce,
> but it is hard to describe them as regulating commerce.
>
> Some powers avoid arguments; Congress can regulate DC without
requiring
> anyone to show an affect on commerce.
>
> Some of the more specific powers come with their own limitations
that are
> presumably not overruled by the commerce power.  Bankruptcy laws
must be
> uniform; patents and copyrights must be for limited times.  The
Court read
> that one out, but not because of the Commerce Clause (or at least
not
> explicitly).
>
> Remember too that most of the expansion of the Commerce Clause
resulted from
> changes in facts on the ground.  The economic integration of the
economy
> 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
Clause,
>> and it is indeed true that it renders most of the rest of
Congress'
>> enumerated powers irrelevant or superfluous. However, one
important
>> 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
the
>> CC.
>>
>> 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/[1]
>> SSRN Page: http://ssrn.com/author=333339[2]
>>
>>
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] /horde/services/go.php?url=http%3A%2F%2Fmason.gmu.edu%2F%7Eisomin%2F
[2] /horde/services/go.php?url=http%3A%2F%2Fssrn.com%2Fauthor%3D333339

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