Commerce: Original Public Meaning

[Al Norris]

I think that instead of resurrecting an older thread, in order to respond to something I missed the the first time around, I'll start a new thread.

The reasoning is simple. The older threads have, at their core, concepts that are not the main reason for my response, and would therefore drag the older thread (further) off topic.

What I would like to attempt here, is to flesh out the original public meaning of the term, "commerce," and thereby ascertain what, if any, limits this places upon Congress.

You may wish to read the actual decisions of the 2 cases that have direct bearing upon Commerce Clause definitions.

Wickard v. Filburn
Gonzales v. Raich

To that end, here are some individual posts, to refresh our memories.

From this thread, Ricky B explains how the Commerce Clause began to be interpreted, via the decision in Wickard v. Filburn: Here.

Here, publius42 explains some reasoning's the Court used in Lopez, that relate to the Commerce Clause.

I responded to Ricky, here, where I disagreed with a specific interpretation and expanded upon what I believed the Court really said.

Here, Ricky responded to both publius42 and my own post.

Publius42 rounds out my references by explaining what two core principles that the Court has used, here.

Moving on to the part I glossed over (missed) in the original thread....

Originally Posted by Ricky B

However wrongly Wickard might have been decided in terms of individual production and consumption of wheat, quite clearly a substantial amount of intrastate commerce in 50 states can affect interstate commerce. So even without Wickard, and without Raich, a good argument could be made that Congress can regulate intrastate manufacture and trading of a product that is a substitute for a product that is traded in interstate commerce.

The problem with the highlighted portion of the quote above, is that manufacture and production, in and of themselves, are not commerce. Bold statement? Not when you stop and understand what the words meant, at the time of the founding.

From Webster's Revised Unabridged Dictionary (1913 + 1828):

COMMERCE, n.

1. In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.

2. Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.

3. Familiar intercourse between the sexes.

4. Interchange; reciprocal communications; as, there is a vast commerce of ideas.

COMMERCE, v.i.

1. To traffick; to carry on trade.

2. To hold intercourse with.

And looks commercing with the skies.

You will notice that the link to the definition, also contains the 1913 edition's definition. Further, that the two definitions did not change in any appreciable manner during the ensuing 100 years.

A further search on words of that era produce no results for the word, "economic." The word, "economics," returns singular result for the word in the 1913 edition. The word, "economy," returns results from both dictionaries. However those definitions have little to do with the word as we understand it today, or as understood in the "New Deal" era.

In short, economics, as a term simply did not exist.

So that in attempting to understand the current meaning[s] of, "To regulate Commerce ... among the several States," you can only shake your head. The current meanings have little, if anything, to do with how the phrase was understood during the founding era.

Attempting to tie a non-existent (at the founding) term to Commerce, is at best, disingenuous. While economics has everything to do with financial matters today, it had nothing to do with commerce, as it was understood at the time the Constitution was written and voted upon by the public.

Commerce was simply the trade in and of produce, or other manufactured goods, between people. Regulation of Intrastate commerce was wholly a function of the general police powers of the State.

The regulation of Commerce only came under Federal authority, when transport occurred between the States (Interstate). Once movement of the product ceased (between the States), ipso facto Federal authority also ceased.

That is the key to understanding Original Public Meaning of the Commerce Clause: Actual movement of goods in trade, between one State and another. Then and only then, may the Congress exert regulation. However, once the movement of goods has ceased to flow from State to State, Congressional reach also ceases.

Wickard, its progeny (up to and including Raich), were decided upon terms that held no public meaning at the time the Constitution was written and are therefore not just wrong, but Constitutionally void.

[htjyang]

(Greetings, all. I have actually been lurking around here for many months but only chose to register today because, well, I just can't resist a good Commerce Clause discussion. )

I agree with Antipitas entirely when it comes to defining the Commerce Clause. I also agree with both publius42 and Ricky with regard to the practical effect of US v. Lopez. I do think that the decision should not be trivialized. Prof. Glenn Reynolds (a.k.a. Instapundit") made the very good point that the Rehnquist Court's federalism revolution only faltered for lack of sufficient follow-up.

Until now.

The Supreme Court will soon be hearing the case of US v. Comstock (08-1224) in its upcoming term. The issue involves whether the federal government can assume the power of civil commitment (traditionally reserved for the states) for potentially dangerous sexual predators. The case will answer the question of whether, in light of Raich, Lopez and US v. Morrison (99-5) are still good law. If the Court affirms the 4th Circuit, (which struck down the Adam Walsh Child Protection and Safety Act of 2006) then it will signal that there is some willingness to curb the excesses of the Commerce Clause. If the Court fails to do so, then that means barring an infringement of a right of the people, the Commerce Clause has no limits.

Personally, I can't say I'm optimistic, even though Morrison clearly suggests that the 4th Circuit is right. Of the 5 member majority in Morrison, both Chief Justice Rehnquist and Justice O'Connor are gone. Justices Scalia and Kennedy were with the majority in Raich. Justice Alito seems to have some interest in curbing the excesses of the Commerce Clause (see his opinion in Rybar). On the other hand, it seems to me that his background as a former federal prosecutor is a strong influence on him (Scotusblog stats regularly show that of the Court, he is the most friendly to prosecutors) so it's not clear he will do the right thing. Chief Justice Roberts's record on Commerce Clause is unknown to me. The only person we can be certain will do the right thing is Justice Thomas.

If, by some miracle, the Court ends up doing the right thing, it will have to reconcile Lopez-Morrison with Wickard-Raich. It has been suggested on Volokh Conspiracy that one possibility is for the Court to proclaim the principle of "core economic purpose." Whereas wheat and marijuana are items can be traded and it was Congress's intent to regulate their trade, the purpose of the Gun-Free School Zones Act was not to regulate the trade of firearms but to prevent their use at specific locations. Similarly, the purpose of the Violence Against Women Act was not to regulate violence against women, but to prevent it. To put it another way, the latter 2 measures were designed as crime-fighting measures. Therefore, they do not serve a "core economic purpose."

Obviously, this still affords the Commerce Clause way more latitude than it deserves. But in light of the current political climate and the balance on the Court, this may be the best we can hope for in the foreseeable future.

Another interesting issue lies in the recent passage of laws by states such as Montana declaring that intrastate manufacture of firearms is not subject to federal gun control. It seems to me that what is happening is that the states, recognizing that a direct assault on the Commerce Clause is bound to fail, decided to add the 2nd Amendment to the mix, hoping that the courts might be willing to curb the Commerce Clause if an enumerated right is at stake. I am hoping that some state will summon up the courage to bring a challenge all the way to the Supreme Court. If the Court is willing to curb the Commerce Clause this way, then the argument underlying Wickard-Raich will gradually unravel.

I know that Antipitas, Prof. Barnett (who argued for Raich), and other libertarians feel betrayed by Justice Scalia's concurrence in Raich. I don't think libertarians have given his opinion sufficient attention (Full disclosure: I consider myself to be a conservative rather than a libertarian.)

i. It is wrong to claim that somehow his opinion is also motivated by Wickard. Unlike Stevens's opinion, he never cited Wickard. He did cite "Board of Trade of Chicago v. Olsen, 262 U. S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U. S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard)." These cases predate Wickard. One might argue that they were wrongly decided. But as they predate Wickard, they could not be influenced by it. Nor are they the progeny of the New Deal as they predate that, too.

ii. His concurrence is more limited than the majority opinion:

In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." Darby, 312 U. S., at 113. See also Hipolite Egg Co. v. United States, 220 U. S. 45, 58 (1911); Lottery Case, 188 U. S. 321, 354 (1903).

Here again, 2 citations of precedents that have nothing to do with Wickard or the New Deal. Even if you disagree with this view, they are more limited than Wickard because clearly, it was not Congress's intent to prohibit the trade of wheat. In contrast, it was Congress's intent to prohibit the trade of marijuana.

To summarize my reading of his concurrence, Scalia believes that precedents dating back to the "Progressive Era" permits Congress to take whatever measures necessary to stop interstate trade of a certain item. Nowhere in his opinion does he mention Congress's authority to regulate the intrastate trade of items like wheat when Congress does not intend to prohibit its interstate trade.

In conclusion, I think the pessimism and outrage libertarians direct toward his concurrence are misplaced. If the issue involves the intrastate trade of an item that Congress does not intend to prohibit (such as firearms, for example), then I expect him to curb Congress's abuse of the Commerce Clause.

Of course, if he fails to do that, then I promise I'll post a video of myself eating his Raich concurrence.

I do have one question for those of you interested in the Commerce Clause: Do you agree with the "channels, instrumentalities, and substantial effects" 3-part test outlined by the Court in Lopez or do you agree with Justice Thomas's concurrence that only the first 2 should be permitted?

[tube_ee]

was based on a serious contemplation of what the Commerce Clause was intended to do, in terms of defining the relationship of the Federal government to that of the States, and how much was motivated by "drugs are bad, mmmkay".

In other words, if the product being traded intrastate was not marijuana, would the decision have been different?

I think it would have.

--Shannon

[maestro pistolero]

California and Montana may actually have something in common, after all! Tenth and Second Amendment issues collide with the much-abused commerce clause to to pit the California and Montana state governments against the feds over over otherwise completely unrelated issues.
http://www.tenthamendmentcenter.com/...feds-back-off/

Welcome to TFL, htjyang, great first post.

[Maromero]

I'm shooting from the hip so bear with me. When immersed with details I like to withdraw and take a bird's eye vew of things. I do remember that the commerce clause ultimate principal is avoiding a state to place itself in a position of economic isolation, thus protecting national solidarity. It is in this light that the clause should be interpreted.

[raimius]

Ok, I'm not familiar with most of the case history with the 10th.
Can you explain the practicalities of the "channels, instrumentalities, and substantial effects" test?
Also, how much effect would eliminating the "substantial effects" portion have?

[ftd]

the commerce clause ultimate principal is avoiding a state to place itself in a position of economic isolation, thus protecting national solidarity

I can't keep up with you legal scholars, especially regarding analysis of cases/opinions or even how the courts develop their logic(???) in interpreting the constitution. I do try to study the history of the development of the constitution, but I very likely also fall short there.

The above quote seems like, maybe, the most positive description of the original purpose of the commerce clause that I have every read (protecting national solidarity - sounds like a good thing!). I have been viewing the commerce clause as a negative mandate in regard to intrastate commerce, i.e., it's principle is that only the federal government can regulate foreign commerce (certainly fits in with "national solidarity" viewpoint), AND that the states may NOT regulate commerce between each other in the same way (states can NOT act like mini countries with one another).

I like my "negative principle" approach better, but the positive approach might explain a little of why congress, with the courts' more than willing blessing, have tended to want to make careers of implementing manymany federal controls on what should be an "only what is absolutely necessary" area. Was it James Madison who wrote that the commerce clause was the part of the constitution that he actually feared?

Please, scholars, continue keeping us informed on what is going on. I only ask that you put a little more focus on helping us legal illiterates understand what you are telling us.

Thank you, Antipitas, for your opening post. It was great, except that I still need more help on understanding the cases. I often wish that we could implement a more "zero based" method, as in zero based budgeting, of constitutional judgements rather than most always having to justify to previous decisions. The Supreme Court needs to learn to admit past mistakes.

[Al Norris]

Welcome to active participation on TFL, htjyang.

One of the reasons for starting this thread, was to build upon the analysis of Heller (Original Public Meaning) and apply it to the Commerce Clause. Something I feel that should have been done, long before now.

Originally Posted by tube_ee

In other words, if the product being traded intrastate was not marijuana, would the decision have been different?

I think it would have.

The very next Commerce Clause case that was decided by the Court was Gonzales v. Oregon, a right to die case, using [drum beat, please] controlled substances.

The issues were substantially the same. Controlled drugs were at the core, but the majority wholly ignored their own precedent in Raich.

It would be fair to say that Madison did fear this power:

"For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

James Madison to Joseph C. Cabell, Letters 4:14--15, 13 Feb. 1829

[htjyang]

1. Of the "channels, instrumentalities, and substantial effects" test:

"Channels" is about the channels of trade, i.e. airlines, shipping, trucking, railroads. In other words, anything that can convey goods across state lines.

"Instrumentalities" is about the goods being traded, be they firearms or wheat.

The "substantial effects" test is actually not derived from the Commerce Clause itself. Rather, it is derived from the Necessary and Proper Clause. The Interstate Commerce Clause is derived from Article I, Section 8 of the Constitution that reads:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Necessary and Proper Clause comes from the very end of Article I, Sec. 8:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The idea behind the "substantial effects" test is that sometimes, Congress, in regulating the channels and instrumentalities of trade, may need to promulgate regulations that are not directly related to those 2 categories but are nevertheless necessary to ensure that their regulations in those 2 areas are effective.

2. Maromero's understanding of the Interstate Commerce Clause is very close to mine and may very well have been one of the motives of the Framers. My own understanding is that as a result of the Articles of Confederation, the states imposed various trade barriers against each other, resulting in great chaos. The Constitutional Convention was summoned to resolve these problems and the Framers decided that Congress should be granted power to ensure that there will be free trade or, at least, uniform rules when it comes to interstate commerce.

3. The reason why Justice Thomas did not accept the substantial effects test is because first, it is not derived from the Commerce Clause. Thomas's concern is that even if the tests announced by the Lopez Court are followed, what may result is that whereas the Interstate Commerce Clause is cut down to size, the Necessary and Proper Clause may be raised to take its place so that in the end, nothing will change.

This explains why nobody joined Thomas's concurrence. It's clear that Thomas was contemplating the possibility that the Court has the power to declare much of the federal government unconstitutional. A proposition so radical that not even Justice Scalia joined his concurrence. (Which is rather unusual. Statistics show that the 2 generally have the highest agreement rates.) My guess is that if Thomas's vision prevails, most of the federal government will not withstand constitutional scrutiny. Only those areas that bear some resemblance to the system of government that existed during the time of the Framers will survive, things like the Departments of Defense, Justice, State, Treasury, Congress, the courts, and maybe Homeland Security and USPS. Even large sections within these departments will not survive.

Try to imagine what our federal government will look like if these are the only parts left. Things like the Social Security Administration, FCC, OSHA, EPA, Medicare, Medicaid,...etc. All gone.

The chaos that will result from such change is unimaginable and it explains why the rest of the Lopez majority chose not to sign onto his concurrence.

I tend to be closer to the Scalia side of constitutional interpretation and I prefer the 3-part test rather than Thomas's 2-part test. I have to admit that declaring most of the federal government unconstitutional is very tempting. However, I think that a strict construction of the 3-part test can achieve the same result. I think Thomas's concern is in part motivated by his fear that lower courts and Congress may abuse the substantial effects test. But that simply means it is up to the people to elect the right representatives and then for them to select the right judges.

I find that too many people on all points along the political spectrum tend to blame the failure of their agenda on some secret cabal/conspiracy, a group of supposedly unaccountable elites. Personally, I can't say I'm fond of conspiracy theories. My view is that the US government, by and large, reflect the will of the people.

I'm sure many of you have seen opinion polls about how most people prefer smaller government. I regret to inform you that those polls are utterly meaningless.

My own experience is that the very same people who want a smaller government tend to have their own favorite government programs that they want to defend at all costs. Hence one person may rant about the intrusiveness of Big Government. But ask him if he wants to cut government funding of cancer research, and he'll immediately pull back from his original position. But it wasn't President George Washington who established the NIH to fund research on illnesses.

So the unfortunate reality is that all these government programs exist because some people somewhere want them.

That's why I don't share Thomas's opinion. In my view, we have a Congress that is busily expanding government power and courts too feeble to oppose them because many people want those programs and many people do not want the courts to oppose them.

Therefore, Thomas's concern about legislative overreach and judicial timidity cannot be solved. Even assuming that somehow, magically, the other 8 justices on the Supreme Court are all transformed into Thomas clones overnight and the new Thomas Court starts striking out laws like the Endangered Species Act, what will quickly follow is that the Senate will immediately confirm 10 Justice Stevens clones to get the result that they want. Since Justice Thomas is loyal to nothing but the Constitution, he will let them because the Constitution clearly permits the Senate to do so.

In conclusion, my view is that if we do get at least 5 justices who are strict constructionists, then that will reflect that the society is ready for strict constructionism. In that case, whether the substantial effects test exists or not becomes immaterial because even if it exists, the strict constructionists will read it narrowly. If society is ready for strict constructionism, then Congress and the lower courts are less likely to abuse it.

[Al Norris]

htjyang, for the most part, I agree with your assessment.

Where I disagree is that the States themselves (being a closer reflection of the people), may affect Congress and the courts.

Should the States continue to gain momentum in announcing their opposition to the encroachments of the Federal Government, that government will begin to listen.

Too, such change need not happen in a vacuum. We didn't get this way overnight, so I see no need to undue everything at once. Small meaningful steps are always preferred.

[Maromero]

Extrimely intresting reading. Flashback to law school.

[htjyang]

Antipitas,

You're right in that I should not have neglected the states, though it's unclear to me how influential they will be.

During the 1990s when the National Governors' Association was controlled by a Republican majority that also happened to be fairly conservative, they significantly influenced the course of the welfare reform debate.

Today, the NGA is controlled by the Democrats and the GOP governors in it are not as conservative as they used to be. So I don't think we can expect it to play a significant role in limiting the federal government.

The recent brief submitted by the states with regard to the Chicago cases is very interesting in that they call for incorporation. This is a remarkable abdication of the power of the states. From the perspective of gun rights supporters, that is certainly welcome. But from the perspective of those who support federalism, I'm not sure it's so welcome.

That's what makes Judge Richard Posner's loud assertion of federalism so insidious. We know from Heller that the liberals are implacably opposed to the idea of individual gun rights. All it takes is one defection from the majority and Heller will be significantly weakened, if not overturned. Posner's federalism and Judge Wilkinson's argument about popular sovereignty have the potential to weaken the resolve of one or more from the Heller majority, a majority so slender that it cannot withstand a single defection.

You see a similar dynamic at work with regard to Commerce Clause and federalism cases. Here again, from Lopez to Seminole Tribe to Alden v. Maine to College Savings Bank to Morrison, liberals stand implacably opposed. All of these cases are won by conservatives but only with 5-4 majorities.

What Lopez, Morrison, and Comstock have in common is that the laws in question (banning guns from schools, civil penalty on violence against women, and civil commitment of dangerous sexual predators) are hugely popular. It takes a tremendous amount of courage for the conservative majority to rule as they did in the first 2 cases. The late Chief Justice Rehnquist was sometimes criticized for being more sympathetic to the police than to the Constitution. Which makes his position in Lopez and Morrison all the more remarkable. I tend to disagree with Justice O'Connor's jurisprudence. But her willingness to join the majority, particularly in a case like Morrison, speaks to a great degree of courage and fidelity to principle on her part.

It seems to me that these 3 cases reflect 3 things:

a) Congress's eagerness to pander to the people. To Hell with the Constitution!
b) Congress and the Justice Dept. probably hope that the Court may be intimidated by popular support for such measures that they won't dare to strike those laws down.
c) Congress and the Justice Dept. know that they start these cases with 4 votes, not exactly a bad position to start from. All they need to do is to peel away 1 vote from the center-right coalition. I think what they're doing is that they're appealing to center-right justices who care greatly about law and order. They're hoping that these justices will succumb to their natural inclinations.

They failed in Lopez and Morrison. The Court's membership has changed since then and now they're back, hoping that maybe their strategy will work with the Chief Justice or Justice Alito. We will find out whether they're right in Comstock.

If Congress and the Justice Dept. win Comstock, then that means the federal government will assume general police powers, something long denied to it.

I can't exaggerate how worrisome the trend has been. I (and thankfully, Justice Kennedy as well) was shocked when the Justice Dept., in defending the McCain-Feingold Act in Citizens United, had the gall to claim the power to ban books. When that kind of thing happens, you have to wonder whether the Constitution is still in force. Fortunately, it seems that the Justice Dept. overreached and they're about to be humiliated in a big way in that case. I can almost imagine Justice Kennedy writing an opinion stating: Banning books? Over my dead body!

Still, the thought that up to 4 justices will support the government's power to ban books is alarming. As alarming as 4 justices denying an individual right to own firearms.

Finally, on a tangential note, you might be interested in reading this famous debate between then DC Circuit Judge Antonin Scalia and libertarian Prof. Richard Epstein. (PDF file) Epstein is famous for his modern interpretation of the 5th Amendment's Takings Clause. His idea of regulatory takings is so radical that if the Court adopts it, most federal regulations will have to go. Which explains why, in Epstein's view, only Justices Scalia and Thomas understand him and only Justice Thomas agrees with him. In a way, their debate is ongoing because it reflects the divide between the libertarian view of the Constitution and the role of the judiciary v. the conservative view. The Cato Institute has, at times, also chided the conservative justices for being, in their opinion, too timid.

[csmsss]

htjyang, your position appears to be that it would be too impractical to apply the Constitution as written, so let's continue on with the current, untenable state of affairs that interstate commerce is where you find it, and that there is an infinite elasticity in Congress' ability to write new laws based on increasingly tortured applications of the CC.

My own opinion is that a re-evaluation of the Commerce Clause, and refinement of the scope of authorities of the federal government to those powers and authorities specifically enumerated and provided for in the Constitution, is the ONLY thing that will save this nation. Those very acts of the government in funding this, that and the other social programs are what bind the people to the government, NOT the government to the people, and what will, in due (and rapid) time, destroy us.

[Maromero]

csmsss:

I don't want to speak for anyone but I think you are missing an extremely important point, that is, that the government as you see it today is a reflection of the "people". In simple words (as Abe wisely put it long time ago) ..."that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people,..." is in fact our creation. It's the nation looking itself in a mirror.

It is in fact the result of democracy. Want to change it? Get involved and for everyone who participates actively or passively in these discussions kudos.

[raimius]

"We the people" have tended to look to the government for help, during the past 100 years. As a result, its power has grown exponentially. "We" did this.

I agree that taking a "radical" view and doing away with massive portions of the government simply will not happen today. It is too much change, too quickly. I think it would be a generally good change, but if you try to do it in a day (or even a decade), chaos and economic hardship unknown in recent times will ensue.

[htjyang]

csmsss,

I'm afraid that you misunderstood my position. I specifically stated in my second post that I find the idea of declaring most of the federal government unconstitutional tempting. A strict reading of the Commerce Clause will result in chaos. I don't think anyone should deny that. That's why I agree with Antipitas in that such chaos should be managed by chipping away the State slowly.

My point is that right now, we occupy a very bad position. Even the limited steps taken by the Rehnquist Court to rein in the Commerce Clause attracted opposition in Congress. Furthermore, the division in the Court on the Commerce Clause shows that the center-right majority is only capable of limiting the State at the margins. When it had to deal with a tough challenge like Raich, it immediately collapsed.

So, when you talked about a "re-evaluation of the Commerce Clause", I can only ask: "Re-evaluation" by whom? By the same Congress that has been abusing it? By the courts that have been ignoring such abuse?

I'm suggesting that for those of us loyal to the Constitution of the Framers' that we pick our battles carefully and try to prepare the ground before we initiate combat. We should avoid confrontation when our chances are dim, but hold our ground whenever possible.

The prospects for sharply limiting the Commerce Clause right now are not good. For the foreseeable future, we can only hope for preventing the federal government from assuming general police powers. We also might chip at the edges using the individual rights enumerated in the Constitution and other constitutional doctrines such as the Takings Clause.

That's why I expressed my hope in my second post that a state should confront the federal government with a claim involving the intrastate manufacture of firearms. Such a claim bolsters a Commerce Clause challenge (which, standing alone, is likely to fail) with a 2nd Amendment foundation and offers some reasonable hope for success. At worst, we'll end up where we are. This is one of those situations where we have little to lose but much to gain. A victory in such a case will undermine the very foundation of Wickard.

I mentioned in my 3rd post that the Court is likely to rebuke the federal government in Citizens United. I also mentioned the Takings Clause. In the Court's upcoming term, it has unexpectedly taken up the case of Stop the Beach Renourishment, a Takings Clause case. It was unexpected because the Court had not dealt with the Takings Clause for quite some time. The last time that it did was the disastrous Kelo v. New London. Conservatives have been doing reasonably well since Chief Justice Roberts and Justice Alito joined the Court and I'm cautiously optimistic about Stop the Beach Renourishment because the lower courts have already endorsed the state of Florida's action. Statistics suggest that the Supreme Court reverses lower courts in 65-75% of the cases that it takes. Since it takes 4 votes for the Court to accept a case, we can be reasonably confident that the conservative justices chose to take the case. After all, the lower courts already reached the result that the liberals wanted so they had no reason to disturb their verdict. If the conservatives took the case, that suggests they believe there is a reasonable chance of winning.

This is the type of legal action I prefer: Surgical strikes aimed at cutting back the State's abuses of power. Admittedly, none of them deal with the Commerce Clause directly. The purpose here is to get the Court to become more comfortable in challenging Congress. In time, they can form a body of precedents that the courts will be comfortable in following.

A direct challenge to the Commerce Clause is very worrisome. The defeat in Raich puts previous successes like Lopez and Morrison in jeopardy. That's why I'm concerned about Comstock. It's another direct challenge. Unfortunately, it's filed by some criminals. That type of last ditch appeal cannot be prevented and we can only hope that the Court will do the right thing.

Or consider Heller. The NRA was very worried about such a case and in light of the close division on the Court, who can blame them? Even then, the case was far from a rash action. Robert Levy spent quite some time finding the right plaintiffs, making sure that they didn't have a criminal background that may doom his case.

I readily concede that we're not going to see Wickard overturned any time soon. Until we get a favorable majority on the Court, (at least 6 conservatives, preferably more, to provide for some margin of error) we have to be content with such surgical strikes. Sometimes the key to victory is by first avoiding defeats.

One of the benefits of such surgical strikes is that they may avoid attracting retaliation from Congress while giving people time to readjust to the liberties that are their due but they have surrendered over the years.

[csmsss]

htjyang, my apologies for misreading the intent and purpose of your post. I was perhaps taking the tactical aspects of constitutional challenges to the current reading of the CC too lightly. Clearly, escaping the tyrannical doctrine of Wickard will be a fantastically bitter pill for vast segments of our society, and isn't likely to happen in a single, all-encompassing decision.

I'm still not happy about nor comfortable with a strategy of one foot in the door incrementalism, but am realistic enough to understand it may be the only course for restoring us to a more reasonable approximation of the limited central government our founders had in mind when they wrote the darned document.

[Maromero]

On topic. Btw, does anyone know Sotomayor's position regarding the commerce clause?

[csmsss]

csmsss:

I don't want to speak for anyone but I think you are missing an extremely important point, that is, that the government as you see it today is a reflection of the "people". In simple words (as Abe wisely put it long time ago) ..."that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people,..." is in fact our creation. It's the nation looking itself in a mirror.

It is in fact the result of democracy. Want to change it? Get involved and for everyone who participates actively or passively in these discussions kudos.

It is precisely the purpose of the Constitution to prevent runaway democracy such as you are describing. Let us not forget that Adolf Hitler was democratically elected in several free and fair (at least by the standards of the time) elections, yet imposed one of, perhaps THE most oppressive and murderous regimes in recorded history.

I'm not comparing anyone to Hitler, just pointing out the obvious fact that the "will of the people" is hardly a guarantee of the protection of individual rights and liberties, and shouldn't be confused as such.

[publius42]

Originally Posted by htjyang

i. It is wrong to claim that somehow his opinion is also motivated by Wickard. Unlike Stevens's opinion, he never cited Wickard.

Welcome, htjyang. I also find these discussions fascinating, and appreciate your joining us.

You are wrong about the statement above. Scalia cited Wickard in two ways: by agreeing with Stevens' opinion, which was all about how Raich and Wickard are the same issue, and by citing it directly in a footnote. Here is the excerpt from his opinion:

Although this power “to make … regulation effective” commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce.

That statement relies on and footnotes to Wickard, and without that statement his entire argument falls apart because without Wickard there is no precedent about intrastate activities that substantially affect interstate commerce.

Originally Posted by htjyang

Chief Justice Roberts's record on Commerce Clause is unknown to me.

I looked into it a bit when he was nominated, and the only discussion I found was about an Endangered Species Act case. Roberts apparently mentioned in dicta that an indigenous California toad was not and could not affect interstate commerce, but added that he might uphold the ESA on some other foundation of authority. That's the good news/bad news with Roberts. He can apparently correctly identify something that is not interstate commerce, which is a rare gift in a Supreme Court Justice, but he also finds authority over indigenous California toads elsewhere in the Constitution. He can only mean (shudder) the general welfare clause in an extremely broad interpretation, which would be far, far worse than the commerce clause.

[htjyang]

publius 42,

I'm sorry for missing footnote 2, though it seems to me that he was describing a Court precedent rather than his own view. Strictly speaking, he did not agree with the majority opinion as he did not join it. He wrote a separate opinion concurring with the judgment.

I'm also aware of the famous "hapless "toad" case. I find it hard to believe that Roberts would believe in something as silly as a general welfare clause. The courts rightly rely upon the Federalist Papers to help them discern the intent of the Framers. James Madison's Federalist 41 should be sufficient to blow such nonsense out of the water:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

[Maromero]

I found this summary of the case which will help understand the discusion.

Facts of the Case:
Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted thewheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use.

Question:
Is the amendment subjecting Filburn to acreage restrictions in violation of the Constitution because Congress has no power to regulate activities local in nature?

Conclusion:
According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"

[publius42]

Concurring is agreeing, and Scalia was not just taking note of the Wickard precedent as a curious aside. He was basing his argument on it.

[publius42]

I'm also aware of the famous "hapless "toad" case. I find it hard to believe that Roberts would believe in something as silly as a general welfare clause.

I also find it hard to believe. The only thing I find harder is locating a source of Congress' power over indigenous California toads, if the commerce and general welfare clauses are eliminated. I've studied Article 1, Section 8 several times looking for an answer. Maybe you saw one I missed? Roberts did say there was some other grounds for upholding the law, but I can't figure out what he meant.

[green-grizzly]

I think your reasoning is very sound Antipitas.

People have a tendency to conflate "interstate" and "commerce." It might be very difficult to disentangle what is necessary and proper to regulate activity between the states and what isn't necessary (esepecially as the economy has become more integrated over time), but it should be fairly straighforward to figure out what is commerce and what isn't. If it isn't commerce, the law should not apply in that case. That could be a sort of affirmative defense.