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To: Tublecane
I don't think so. Gibbons established that navigable waterways were potentially "channels of interstate commerce", and as such commercial operators on those waterways were subject to the same rules as other interstate carriers (eg railroads).

It explicitly did not recognize any application to intrastate commerce.

The subject to which the power is next applied is to commerce "among the several States." The word "among" means intermingled with. A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Wickard established the "substantial effects" doctrine that says Congress can regulate anything they "find" to "have a substantial effect on interstate commerce". In Roscoe Filburn's case, he was fined for growing his own wheat, because in doing so he avoided having to buy it, and that would deny someone in another state the opportunity to sell it to him, thus affecting interstate commerce.

Congress explicitly claims this "substantial effect on interstate commerce" in the Clean Air Act, which established the EPA.

37 posted on 08/31/2012 1:42:51 PM PDT by tacticalogic ("Oh, bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
The essence of Wickard was considered and rejected by our Framers in August of 1787.

Short essay Here.

39 posted on 08/31/2012 1:53:06 PM PDT by Jacquerie (Exterminate rats.)
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To: tacticalogic

When you say “commercial operators,” there’s the rub. They’d have to be involved in commerce to be commercial, and if we’re talking about commerce why bring up “navigation”? Because the decision extended the power beyond commerce to non-commercial navigation, that’s why. Otherwise there’s be no controversy and no decision to force kids to study in textbooks.

Oh yes it did apply to intrastate navigation.

As for Wickard, yes it is immeasurably worse for extending the definition of “commerce” to include everything affecting commerce. But did you know, and check me if I’m wrong but I seem to remember the majority opinion in Wickard citing Marshall in Gibbons as having held that navigation was regulatable because it affected commerce. Or at least it was implied. Which is false, since Marshall pretended navigation was commerce, though everyone knows better. But there it is: Gibbon is an explicit inspiration for your bated Wickard.


44 posted on 08/31/2012 4:03:01 PM PDT by Tublecane
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To: tacticalogic

As for the Clean Air Act, that’s all well and good. But I was talking about water, obviously. I ‘ll eat my hat if the phrase “navigatable waterways” doesn’t pop up any time they want to justify backyard pond regulations.


45 posted on 08/31/2012 4:08:10 PM PDT by Tublecane
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To: tacticalogic

As for the part about “carriers” such as railroads, you have it backwards. Gibbons was decided in the 1820s when hydrocommerce (if that’s a word) was king. The principle that the feds can meddle with railroads whenever and wherever they want, even on lines that don’t cross borders, came later and was inspired by Gibbons.

By the way, I think Gibbons had a good effect. And it was in line with the intent if the commerce clause, which was to prevent interstate trade wars. Had it been after the 14th amendment and had they struck the state monopoly on steamship passage down on 9th amendment antimonopoly principle I’d be all for it. But they didn’t, and they acted unconstitutionally.


46 posted on 08/31/2012 4:17:51 PM PDT by Tublecane
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To: tacticalogic

The more Ithink about it the more I realize how apt is your choice of the term “commercial operator” for understanding how wrongheaded is our post-Gibbons and more importantly post-Wickard Constitutional mindset. The law struck down in Gibbons conferred a monopoly on some steamship service operating within New York. That service was certainly a commercial enterprise, but in what did its commerce consist? Ferrying passengers across the river? No, that’s navigation, not commerce. Where was the commerce, then? Why, when the passenger bought the ticket, that ‘s when. Thar was a commercial transaction. The rest is what was laid for in the commercial transaction, not the commerce itself.

Whence this notion that whatever a “commercial operator” does is commerce? Not so. Commerce is commerce, and calling navigation, manufacturing, storing, and all the other actions of commercial enterprises commerce is unjustified by common experience and the dictionary.

Marshall had to have his way, partly out if the noble instinct to strike down unearned privilege. But after navigation became commerce later railroad travel was too. Eventually so was manufacturing and everything else done for a buck, and entirely within one stare too. Then anything that affects commerce is commerce, and finally almost not doing anything, at least according to four SCOTUS justices.

unearned privelege.


49 posted on 08/31/2012 4:36:16 PM PDT by Tublecane
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