The Commerce Clause Wars--continued from GQ

Morrison, at least, is both a quite real restriction, and one that should not be seen as minor–it would apply to a broad range of types of law.

Even so, my point remains–you haven’t offered any reason to distinguish between (1) the commerce clause is properly interpreted to be broad, and you don’t like that (in which case, the proper answer is to fix it with an amendment)–one might reasonably argue that “commerce” reaches much more today than it did in 1789, and is no longer a good way to limit the federal government’s powers. or (2) the commerce clause is not properly interpreted to be broad.

Further, you just can’t use the tenth amendment to argue that the commerce clause should be interpreted narrowly–because the tenth amendment, as you concede, is defined by the powers granted to the federal government–such that the tenth amendment’s scope is defined by, rather than a limit on the scope of the commerce clause (properly understood). By its own text, it just doesn’t limit the scope of the CC–it limits the federal government from going outside the scope of the CC.

You’re just plain wrong. You don’t need to reinterpret the CC in any way for it to become broader because many more things are “interstate” than before, and many more things are “commerce” than before. And that is the point I see Rumor_Watkins making. Further, I think the contention that commerce is now far more substantial and far-reaching than it was in 1789 is obvious from a few moments thought about the economy in 1789 and 2009–in 1789, the economy was principally rural, with many individuals not leaving their home state, and transport hard.

Now, people commute between states as a matter of course. The economy is far more integrated than it was in 1789. The food I eat, which would have previously been grown on my farm or nearby (either not commerce or commerce), is now from a supermarket (commerce), part of a national chain (interstate) supplied by trucks (commerce) shipping from many other states and countries (interstate).

That may mean “commerce” gives more power to the federal government than, normatively, we think we should–but if so, the solution is to amend so that some other factor limits federal lawmaking, not to artificially limit the CC.

I’ve been in and out, but I just wanted to drop in to address this.

I think that the 10th amendment does give credence to the idea that the commerce clause should be interpreted narrowly.

Unless the authors of the amendment were being extreme smart asses, then you would assume that they had left a very broad and expansive residue of power to the states. This does not mesh with the idea that the commerce clause can be interpreted to include almost everything that touches upon commerce.

And if the modern interpretation is correct, why the need for all of the other grants of power?

To print and coin money? That is obviously commerce, so why the need for a separate grant?

To grant patents? To punish piracy on the high seas? Uniform laws of bankruptcy? A national standard of weights and measures? Punish counterfeiting? Establish post offices and post roads?

All directly related to commerce, yet the founders saw the need to include all of these as direct grants of power.

It does not compute that these men thought that commerce among the several states extended to private wheat cultivation or anything resembling the modern thoughts regarding the commerce clause.

I don’t know why you would assume that they left a very broad residual clause. It’s the last of the original amendments - a mop-up, so to speak. I don’t see how you can reasonably interpret that mopping up to suggest that it was a very broad grant of powers.

Because they wanted to leave the document open for interpretation while dealing with the very specific issues of federalism that they were aware of at the time - they wanted to make the document adaptable while still dealing with the political “hot button” issues of their time.

For a nascent country, ensuring the value/authority of their currency was a big deal - why would they leave it up to a debatable interpretation of the commerce clause when they can stick 4 words in and be done with it? Same with a lot of the other stuff.

It’s a balancing act - they have certain notions of what the federal government ought to do, but since they can’t predict the future, they don’t want to hamstring future governments by limiting federal government powers to very narrowly-defined areas like admiralty, bankruptcy, etc.

At least that’s one way of looking at it, the other is simply to take a very narrow view of what “commerce” is. Either way, the 10th amendment doesn’t really factor into the discussion because, as mentioned above, you’d be making a cyclical argument along the lines of “see, this provision says that the states get whatever is left over, so you have to leave us something in order for this to have any meaning!”. which is never the case with a residuum clause.

here, let wikipedia’s citation of Supreme Court caselaw be your guide:

I agree completely. The tenth goes out of its way not to define its scope in substantive terms–it would be very different if it had said “the traditional powers of states are reserved to the states, or the people,” for example. The text of the tenth just doesn’t say anything about whether it is broad or narrow.

Jtgain: a little off-topic, but I thought I’d ask-- If you are willing to make this assumption about the tenth, do you feel the same way about the Ninth? Should it also be read as implying a broad set of rights? I don’t see any way to distinguish the arguments.

Also, while spending money is commerce, it’s not clear that coining money is. That seems more like a governmental function than a commercial enterprise. You don’t do it to make money–you choose how much money to coin for policy reasons. So I think I would reject Jtgain’s assumption that many of the powers he lists are completely consumed even by an expanded commerce clause.

Exactly. Also, the argument that something must be left over just plain doesn’t say anything about whether that something is big or little. So, even with Jtgain’s contention, we still have no reason to prefer a broad or narrow set of reserved powers.

Beyond that, to interpret the tenth amendment to conclude that it should reserve a broad set of powers requires interpreting its text, going beyond the plain language and meaning—which is exactly the kind of thing Jtgain seems to be suggesting we shouldn’t do when interpreting the commerce clause.

So, Jtgain am I confused? If not, why is such interpretation and going beyond plain meaning OK for the tenth, but not for Article I?

I’m not sure I’d say the tenth is a truism–more like I’d say it is unnecessary, or makes explicit a meaningful rule that is so fundamentally implicit in the text of the constitution as to not need spelling out.

The text of the Articles of the Constitution don’t explicitly say that it creates a federal government of expressly limited powers. It grants some powers to the federal government, and remains silent on what happens to the others.

Now, before people yell at me, I would argue that any reasonable interpreter would read that into the text of the constitution–that the federal government is a government that may only use the powers granted to it by the constitution.

That being said, the tenth amendment makes this principle explicit. It only does no work if you are willing to imply its limitation from the text and history of the constitution itself (as one well should).

Like with the ninth amendment, the framers felt it was important to explicitly set out certain principles for interpreting the constitution–that it did not list all rights held by the people, and that it was a grant of certain powers to the federal government, but that grant should not be read to affect the allocation of those powers not granted to the federal government.


Everyone who is even marginally interested in the thread topic, on either or any side of the argument, should read The Frozen Republic: How the Constitution Is Paralyzing Democracy, by Daniel Lazare.


why? what’s the thesis of the book?

That may mean “commerce” gives more power to the federal government than, normatively, we think we should–but if so, the solution is to amend so that some other factor limits federal lawmaking, not to artificially limit the CC.

I understand that commerce is more widespread and more interstate(and international) than it was in 1789.

However, the commerce clause should still be interpreted to only cover actual interstate commerce not second order effects of things that are not interstate commerce but could conceivably affect interstate commerce.

Also, interstate commerce regulation does not imply a general police power, according to quotes from the Founders. The primary purpose of the clause was to prevent states from setting up trade barriers. to prevent this, you don’t need a police power. Of course, if you want to enforce a minimum wage law, you need a general police power.

To get at how absurd the modern jurisprudence is, if you rob an IHOP, you are committing a federal crime because IHOP is interstate commerce. We aren’t very far away from our local police forces being federalized if justices don’t start reining this stuff in.

I missed the part in Title 18 of the US Code where knocking off your local pancake shop is a federal beef. You’re going to have to elaborate on that

Add me onto the “citation needed” list.

Also, to respond

Care to be specific as to why? I’ve cited the necessary and proper clause, as well as flexible definitions under the commerce clause, combined with a substantial increase in the scope of “commerce” for my proposed interpretation.

Now, I will assume that you’re just making a textualist argument. As I’ve already pointed out, there is more than one definition of “commerce” and “among the states”–be specific about which you pick and why you think it’s right.

Care to cite, to let us see what you’re using? Actually, it probably doesn’t if you do–since this statement is, technically, correct–the commerce clause is not supposed to give a general police power. But that doesn’t mean much.

The police power is, literally, the power to regulate everything. It’s huge. The commerce clause as it is today isn’t that. The CC wasn’t intended to be that.

But in the broader sense, this argument doesn’t do much for you. Nobody will disagree that the CC wasn’t intended to be a police power. But it isn’t one today–so it’s not a problem with the modern interpretation of the commerce clause. And that is all the argument does—the fact that the commerce power wasn’t supposed to transfer everything simply doesn’t enlighten us as to whether it was meant to be interpreted broadly or narrowly.

Really? Not as a source of affirmative power to the federal government?
Hint: You can restrict the states from setting up trade barriers without giving the power to regulate commerce to the federal government.

Funnily enough, you can find such a provision in the US constitution.

Further, if you are really arguing that the role of the commerce clause was to act as a dormant commerce clause–to preclude state action, you are adopting a hamiltonian viewpoint. And he says so himself.

But you don’t want to be a hamiltonian. He was the one who argued in favor of broad federal pre-emption of state regulation. That is an interpretation of the constitution that gives the federal government broad power.

And this can be seen by the fact that he’s not just arguing for a bar on state regulation of commerce, but for a uniform scheme of federal regulation.

Further, I think a lot of your argument in the post I’m quoting rests on inferences you are making about the framers’ beliefs about the power of the CC to bar state trade barriers.

But we don’t need to guess. We can look at the debates in the constitutional convention. And, as you will see, there was substantial dispute among the framers over whether the commerce clause would in fact bar state tariffs–the prevailing view was that it did not (I infer this from the fact that the argument in favor of Art. I S10 Cl. 3 was that the commerce clause didn’t bar trade barriers–and that argument prevailed, because the clause was approved by a vote of 6-4.)

Good stuff. I’m not ignoring you guys, but I got slammed at work. I’ll rebut this weekend.

My big problem with the current interpretation of the ICC is that it is built upon a fraud, a few Supreme Court justices pissing on the Constitution to save their jobs.

I understand the gradual evolution of constitional interpretation that accounts for new technology such as airplanes (someone mentioned the FAA in an earlier thread), automobiles and the internet or social issues such as integration (cf. Plessy and Brown). However, the current interpretation was a deliberate change by SCOTUS in direct reaction to FDR’s court packing scheme and the unconstitutionality of the New Deal.

The lawyers on the Dope always love to talk about the sancrosanct policy of stare decisis. However, that policy was thrown out the window overnight with the “Switch in Time Saves Nine” and yet that same legal policy of stare decisis prevents us from going back to where it should be. :confused:
The ICC should be interpreted as applying to those things that are DIRECTLY connected to interstate commerce and if a law cannot demonstrate a direct effect on IC then it is unconstitutional.

The court of last resort is never bound by stare decisis - they usually go along with it because it’s either good reasoning, or changing it at this point would do more harm than good. But to say that stare decisis prevents the SCOTUS from doing anything is wrong. Roe v. Wade freakos bank on this, fwiw.

Says you. But then again, how do you define or demonstrate “directly”?

The hypothetical that we discussed in law school was, could Congress pass a law requiring a particular state to move its state capital? Say it decides that it’s an unfair burden upon interstate commerce to situate the state government in out-of-the-way places like Albany, Sacramento, and Springfield, because it’s more expensive to tranport goods and services there. Could it pass such a law under its commerce clause powers?

That’s a pretty dumb hypo.

That’s law school. It’s an extreme example, but the point is to get one thinking about precisely what elements of commerce clause jurisprudence would justify or forbid such a law.