To: Rockingham
To me, that makes sense only if several means not "interstate" or "between the states" but as reference to the states as a whole, which I what I took Madison's meaning to be. Marshall in Gibbons:
The subject to which the power is next applied, is to commerce "among the several States."[ ]Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one.
588 posted on
11/07/2005 9:50:56 PM PST by
Ken H
To: Ken H
Gibbons v. Ogden is a lengthy opinion that both vindicated the federal power over commerce as supreme and included language that asserted that purely intrastate commerce as exempt from federal power. A small residue of that exemption continues today, but the more fundamental problem with Gibbons as authority is that it was not a test of just how far the federal power over commerce goes. The true stopping point comes when the Court says no consistently, not when it says yes.
As I have already contended in detail, the commerce power by its nature is as supreme as necessity requires. The few cases in which the Supreme Court said no further were on specific grounds that were not especially coherent as a legal doctrine. Like some newly discovered rare species of rain forest insect menaced by Amazonian bulldozers, about the time scholars recognized the "dual federalism" cases as a doctrine of sorts, the New Deal's expansion of federal power overwhelmed it.
Here's another passage from Gibbons that indicates just how protean and compelling the federal power over commerce was seen to be by Marshall and his contemporaries:
"the people intended, in establishing the constitution, to transfer, from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain an uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be an unit; and the system by which it was to exist and be governed, must necessarily be complete, entire, and uniform."
That can leave some matters as purely intrastate commerce beyond the power of the commerce clause, but, in the end, Gibbons and almost every other Supreme Court commerce clause case for more than two hundred years has ruled in favor of federal power, not against it. Language about purely intrastate commerce being beyond federal power have consistently been little more than kind words of consolation to the losing side.
To: Ken H; Rockingham
The Commerce Clause power is not used to legislate intrastate activity. Why are you all getting hung on "among" and "several"?
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