commerce clause question

[Douglas Laycock]

  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 
> following:
>
> 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
> idea).
>
> 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 
> long.
>
> 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/[1]
> Email discussion group: 
http://groups.yahoo.com/group/TheLudwigGroup[2]
> SSRN papers: http://ssrn.com/author=596860[3]
> Conference papers:
http://ludwig.squarespace.com/research-agenda/[4]
>
>
>
>
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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

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------
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