I would look at it like this: states have equal authority, and so without the commerce clause there could be no way to lay ground rules between them; the commerce clauses establishes the federal government as the glue that holds states together with respect to trade. Roads which link the country up are important for trade; shipping routes the same; and how to handle things when states disagree, such as to transporting nuclear waste from one state that produces it in accordance with its own people’s blessing to a state that would store it with its people’s blessing, with a wasteland of states inbetween which prohibit the production, storage, or transport of nuclear waste. In any case, states have enormous power in their own borders but none outside of them so some kind of arbiter is required and that just is the federal government; in this case, actually, the laws the federal government will pass to establish this base. I would never interpret the commerce clause as granting Congress the authority to actually ban an item. But if Texas and Ohio allow sales of some item other states restrict, and they wish to trade, the question of how this could be done could be under federal powers. For instance, compelling geographically intervening states to allow transport (or equally, telling Texas and Ohio to deal with the fact that they don’t; or telling intervening states that air traffic is not under their control in that way; or…).
I would direct everyone to the mammoth but highly informative “Constitution of the United States of America: Analysis and Interpretation.” The last version was published in 2002 with addendums added every other year. The entire section is very interesting, and difficult to cherry-pick for salient bits.
How does a textualist deal with the fact that a third of the amendments to the constitution occurred within a few years of its passing? What could they mean by infrequent amendments: that the framers were omniscient and foresaw globalisation and industrialisation?
I don’t see why it matters when the amendments were passed. Of course the framers weren’t omniscient and they realized that amendments would be needed. When the original grants of power to Congress weren’t enough, more needed to be added via the amendment process instead of just saying by judicial fiat that Congress can do anything it wants.
Why insert the adjective “financial”? Under current precedent, any action is covered even if it’s only other people who are involved in any financial activity.
Under current jurisprudence, growing marijuana on one’s property for one’s own use are determined to fall under federal purview, because other persons, elsewhere, are involved in the buying and selling of marijuana.
Under that logic, it could be argued that growing flowers in a garden affects the horticulture industry, or that home movies or community theater affect the theatrical industry, or even that consensual sex affects the market in prostitution: so long as someone else is paying for it, there is a market in said activity, some of which may involve crossing state lines, and thus it falls under federal purview.
You can argue that those things are totally different, and that there is some identifiable distinction; please feel free to do so. But as of yet, the supreme court has articulated no such limiting principle on the commerce clause, nor has anyone in this thread.
I wonder if a different argument would have worked in Lopez. Say that since a law telling me I can’t possess a gun in a school zone would lessen the utility of a gun, therefore decreasing the demand for a gun in interstate commerce, Congress was using it’s commerce power lawfully by regulating a national scheme for keeping gun prices low?
Further Morrison: Since beating my wife would subject me to a federal court injunction, I would be less likely to do so, thereby lowering health care costs (from battered women in emergency rooms) and regulating as a part of a national health care scheme?
Yes, it means exactly what it says: commerce (e.g. actions of buying and selling) that cross state lines becomes subject to federal regulation. It does not say “commerce within the states.”
Well, I tend to think of the framers as guys doing the best they could for their day and age. They kind of mucked it up here, as the phrasing they used, while perhaps appropriate for the time, doesn’t work very well today. In particular because commerce is far more interconnected than they could have foreseen. The end result is that, yes, Congress has relatively untrammeled power to regulate most aspects of a persons economic life.
I think a round of cleanup on the Constitution would be pretty handy, as there are quite a few things that are outdated and confusing. Surely Jefferson, at least, would be shocked and appalled that we were still using the same one over 200 years later. But then I shudder to think what modern politicians would create…
Right. So then the question becomes: what is regulation? Does it include rules regarding non-activity? Does it include rules mandating activity?
I don’t particularly care for this example because it is obviously in violation of the first amendment.
I make no such argument, as I think all of these examples could be regulated under the Commerce Clause, subject to Necessary and Proper Clause (the sex/prostitution one likely fails here, and the horticulture one might as well). I would oppose a government that attempted to actually pass any of them, but that doesn’t make them unconstitutional (again, except for the sex one, as privacy rights become an issue there).
Virtually no economic activity is purely intrastate in modern American society.
It’s a hijack, but this is the kind of cliche that gets repeated without much examination.
In almost every other arena of human endeavor, the tide of history in the last hundred years or more has moved away from centralized power. The most successful militaries in the last few centuries have been those that are flexible and give autonomy to junior officers. The most successful corporations in the last half-century have tended to be those that give divisions/units/managers/employees flexibility to adapt to local conditions. In religion, the trend in the developed world has been away from hierarchical denominations and towards those where churches and individuals have autonomy. Indeed, in government, the long-term trend is also toward smaller orgazational groupings: there are no more empires, and the worldwide trend for over a century has been for the number of independant political entities to rise, not fall.
So ISTM that an argument that “technology and finance have moved us to a point where we need a lot of centralized power” seems to need a lot more support than mere assertion.
I applaud your honesty, and I can only say that we have very, very different ideas about what it means to be a free citizen.
Depends on what you mean by that. If you mean it literally, that’s quite arguable.
It only becomes unambiguously true if you start making inferences and connections: e.g. looking at where component parts were made, and saying that because the tomatoes were grown in Florida, spaghetti sauce made and sold in New York is “interstate.” It’s extremely unlikely that such was the idea of interstate commerce intended in the constitution.
But it’s a side question: as of now, the ruling is that growing a tomato in my backyard and then eating it is “interstate commerce.”
furt, if Ohio and Pennsylvania are burning a metric asston of coal and creating acid rain which directly destroys Massachusetts forests, is this something that the commerce clause could reach to (or some other clause), or is Massachusetts powerless to achieve redress?
These kinds of questions seem related to commerce to me, even if Ohio and Pennsylvania don’t even sell power generated to Massachusetts, because they are compelling MA to share the costs of production. Should OH and PA be able to sidestep all authority by not selling power to MA?
Why do you say that? Just because I believe that my representative could ensnare me in legislation doesn’t mean that I will allow them to. It’s not like a strong judiciary has never been used to enslave a population before…
Yup. That’s the lay of the land. Has been for quite some time.
No, and hell no. Non-activity is the opposite of what you have been given the power to regulate. Because I am a lifeguard at the pool and can “regulate” behavior in the pool doesn’t give me the right to regulate everyone else in the world because they MIGHT attend the pool, or they otherwise affect pool attendance by not being there, nor can I force people to swim in the pool.
By it’s very term, the power to regulate interstate commerce does not include the power to regulate things that are not interstate commerce. That’s why Thomas is right on about the “substantial effects” test. It’s absurd in that it allows regulation of interstate and intrastate commerce and anything that touches it.
Missed the edit window: If you draw the circle large enough to include all subsequent transactions that led to the particular economic activity, then you are right, which is exactly why the commerce clause can’t be drawn that broadly.
If I sell my Ford car to my next door neighbor, that transaction is entirely intrastate. Yes, I bought the Ford from a local dealer in an intrastate transaction, and the dealer bought it from a manufacturer in an interstate transaction.
But why are we looking two purchases of my car earlier to decide that my transaction to my neighbor is commerce “between” states? The interstate commerce stopped once the local Ford dealer paid for the car. Why should that transaction flow down to allow regulation of my transaction, possibly years later, to my next door neighbor?
The commerce clause has been used since the 1930s in the way complained of and affirmed many times that it allows the government to regulate what goes on in one farm or shop. Does it allow the government to regulate the insurance industry? Without question. The question is whether it can require an individual to purchase health insurance and impose a tax on them if they do not. Even if this portion is rejected, the court is not going to strike down the entirety of the law, meaning that the insurers will have to take on people with pre-existing conditions, which is well within the power of Congress to regulate. The law overall will be upheld. The individual mandate may not be. But given that the individual mandate is a gift to insurers by the government from healthy people who do not have coverage (or political clout) I find it unlikely that the supposed conservatives on the court will strike it down. Roberts have never once in his career issued a final ruling against a corporate interest. Since the government clearly has the power to require insurers to take pre-existing condition patients, and since they will lose money if the mandate isn’t upheld, look to at least a 5-4 decision to uphold. As noted, Scalia has boxed himself in with his marijuana decisions, Kennedy is likely to vote with the liberals. Thomas will almost certainly vote against the law, with Alito in doubt. The most likely outcome is to uphold. The second most likely is to have the court abstain from ruling for any number of reasons.
Why would it be “twisting” the commerce clause? Aside: Do you have any examples of these “nuisance complaints between states”? I can see that federal judicial power extends to disputes between states, but what teeth could this have if the federal government has no authority over intrastate commerce period? What could the federal government do besides tell MA, “You’re right, but our hands our tied”?
Again I find the analogy strained, as there is no concept of “interstate” pools. And there really isn’t anything analogous to federal authority over the states and what-not. But that’s neither here nor there. I certainly could, as a matter of pool policy, require anybody that wants to swim to take a lesson first. And, I would argue, if I was given the power to regulate all pools I could prohibit you from building your own pool to swim in, thus bypassing and undermining my necessary and proper pool regulations.
I don’t disagree that Congress can’t regulate things that aren’t interstate commerce. But the courts have longed noted that “interstate commerce” includes many things beyond simply buying and selling goods (one of the early cases was about navigation rights).
One reason I oppose judicial activism is that it removes predictability. One should be able to read a law’s text and understand its reach. When judges can add penumbras and emanations, we vitiate that quality.
In this case, the damage is done. We have relied on this interpretation well-nigh sixty years. We have predicated large programs and much money on it. It’s wrong, but settled.
No… I assumed everyone was familiar with the case, since it’s only been mentioned here about sixty zillion times.
IANAL, but it seems to me at least possible, if the effect is as direct and concrete as your hypothetical suggests. But of course, that invites the supposition that Connecticut is affected because they are downriver of Massachusetts, and Californians eating Connecticut’s clams, and so on, and without care we’re back to “everything affects everyone.”
I think it’d be far better to simply amend the constitution; industrial-scale pollution is exactly the sort of problem that the framers would have had a very hard time envisioning, and which thus would call for amendment.