Question about the commerce clause

My own noggon | 7-1-02 | Ink West

[inquest]

Often I hear about this or that case where a state law is ruled by the courts to be in violation of the "commerce clause" of the Constitution. But I can't understand for the life of me how any state can "violate" the commerce clause when said clause doesn't actually prohibit anything. All it does in enable (unless there's another commerce clause that I'm not aware of). Does anyone out there know how the courts can get away with ruling that way?

[inquest]

And by the way, if I might request that responses be a little more thoughtful than "The Constitution says whatever the courts say it says", I'd appreciate it.

[inquest]

That should say, "all it does is enable" (not "in enable"). Sorry.

[DryFly]

It's not necessarily the direct result of the Commerce Clause, but the indirect effect of it. It is referred to as the "dormant" Commerce Clause. Given that the Congress has the power to regulate interstate commerce, the implication is that the states don't have the power. Especially in an area which has been previously regulated by Congress, the states simply cannot venture into it. If the Fed has not regulated the specific area of commerce, then the states can do so only if their regulation of it does not unduly burden interstate commerce.

[Alberta's Child]

My understanding is that the Commerce Clause was specifically intended to keep states from imposing their own import duties on goods shipped from other states.

[First_Salute]

Whatever question you have about the Constitution, the answer is simple:

The "Contemporary Constitution" --- as it is known among the heirs who cannot wait to gobble up the wealth of our past good fortune --- is now more accurately The American Anthology of Legal Clauses; which should be read as if it were a poem.

Where once under the rule of law, the concept of law was that the words placed on paper were the expression of the authors' original intent ... nowadays, the impatiently-politically correct a.k.a. the political momenti, see no point in abiding by anybody's last will and testament.

In case you haven't noticed, lately, a person's last will and testament is whatever lawyers say it is but not that person's original intent.

Because the person is dead.

The heirs are living.

The point of the living heirs, is to grasp at the wealth --- depending upon how they may survive their contestate --- to satisfy their wishes, under the principle of activism known as: "Right Now!"

So our once cherished link to wisdom under the rule of law, is instead now, a "living constitution" --- kind of a continuous vowel movement, if you will --- "whatever" the greedly little socialist blood-suckers choose to make of it.

Unless you are one of the faithful, a resistance fighter against such designs by these leftists lost in extra-Constitutional space; in which case for you, and I, there remains the rule of law and our Constitution.

Either course will be painful.

[x]

Go to the Founder's Constitution for comments from the founders on the commerce clause.

[GovernmentShrinker]

Just about anything a state tries to do which has the intention and/or clear effect of interfering with interstate commerce, is unconstitutional under the commerce clause. If a state tries to pass a law that no truck with more than 17 tires can drive on its roads, that's definitely unconstitutional. Importantly, it's the commerce clause that enables you to transport firearms through states where they are prohibited. The courts have (incorrectly) allowed individual states to ban many types of firearms, but have (correctly) ruled that such bans don't apply to someone travelling through the state, to and from states where the firearms in question are legal (they may, however, put some reasonable restrictions, like having them unloaded, and inaccessible by virtue of being a trunk, locked case, etc.).

[colorado tanker]

You answer is spot on. The dormant commerce clause is a tremendous boon to American business in that it gives businesses nearly unimpeded access to a fifty-state market.

[Iron Eagle]

If you think the Court's interpretation of the commerce clause is nutty, you should try to figure out our Federal jurisprudence with respect to the 11th Amendment. That is the Amendment that provides sovereign Immunity. Read that, and tell me which state has immunity from suits by whom. It's pretty straight-forward. Of course, there are books on its "interpretation." Needless to say, Federal Courts have expanded the doctrine and completely ignored its plain text.

As for the commerce clause, Federal Courts continue to provide expansion of Federal powers of regulation by essentially roping all activity under the clause. It is a bit frightening really.

[El Gato]

Perhaps they are referring to the "Commerce Clause" of Art. 1 section 10, second paragraph, rather than the Art. 1 section 8 one more commonly referred to by that name. section 8 is a list of "Congress shall have the power to" items, while section 10 is a list of "No state shall" items. The sec. 10 clause reads:

"No state shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely neccessary for executing its inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress."

The section 8 clause reads:
(The Congress shall have the power) "To regulate Commerce with foreign Nations and amoung the several States, and with the Indian Tribes"

[El Gato]

Just about anything a state tries to do which has the intention and/or clear effect of interfering with interstate commerce, is unconstitutional under the commerce clause.

This is not true at all. States can regulate and/or inspect items coming into their state. Most notably California has produce inspections, as do some other states. Congress has the power to regulate, not prohibit, Commerce between the states. They, Congress, can overrule any state laws or regulations in regards to those isnpections and so forth, but the grant of power to Congress does not take all power away from the states, it just makes the Federal law the prevailing one.

[El Gato]

As for the commerce clause, Federal Courts continue to provide expansion of Federal powers of regulation by essentially roping all activity under the clause. It is a bit frightening really.

A bit? I'd say very frightening. The Commerce clause was originally intended to promote trade/commerce between the states. The states were not to be able to erect trade barriers between one another. Regulate, in those days, meant, made to function properly, not restrict, which is the way the Federal government, all branches, are reading it today.

[tacticalogic]

(The Congress shall have the power) "To regulate Commerce with foreign Nations and amoung the several States, and with the Indian Tribes"

Also note that at that time the commonly used meaning of "regulate" was "to make regular" or "to keep in good working order". IOW, to make sure the states didn't impose barriers to free trade across their borders.

The atrocity we have today was the brainchild of FDR and his "Communitarians" who twisted it into the Constitutional blank check that was used to implement the New Deal. More here.

[sourcery]

Some links regarding the meaning of the Commerce Clause:

• Interstate Commerce/Commerce Clause
• Veto of federal public works bill
• Limits of Congressional Powers
• Summary of Constitutional Rights, Powers and Duties
• Declaration of Constitutional Principles

[Fast 1975]

Generally state laws are struck down under the dormant commerce clause. It's not a very hot topic except for some constitutional law scholars- a line of mundane cases dealing with dairy products and highway regulations.

The Commerce Clause was written out after FDR's court packing scandal- which gave Congress a blank check to regulate everything (which it has gladly accepted). This is what is holding up the Bush judicial nominees- after the court struck down the Gun Free Schools and Violence Against Women Act- the Washington politicians do not want anyone on the federal bench who will stand in the way of their addiction to regulate everyone's life.

[Free the USA]

fyi

[snopercod]

That's my understanding of the original intent, too.

It's important to remember that the Constitution was designed to replace the failing system of a confederacy of nearly autonomous states as laid out in the Articles of Confederation. The Founders largely agreed the system was failing, with trade wars and threats of embargoes breaking out among the states, and competing and often contradictory legal systems. It was clear to most of the Founders that a stronger form of central authority would be needed if the US was to survive.

Of course, the concept has been expanded by power-hungry federal opportunists to mean "all of your commerce belong to us".

Remember the Supreme Court decision that a farmer who grew grain for his own cows was "affecting interstate commerce"?

And then there was the ruling that possessing firearms within 1000' of a school was effecting "interstate commerce". Thankfully the Clarence Thomas and friends struck that one down (barely).

Let's Get Behind the Ennumerated [Yeah, I can't spell] Powers Act

[snopercod]

Is it just me, or is America regressing to the 12th Century system of "justice"?

[Willie Green]

The dormant commerce clause is a tremendous boon to American business in that it gives businesses nearly unimpeded access to a fifty-state market.

Sadly, transnational corporations want to extend this privilege to entities not subject to the jurisdiction of our Constitution.

[snopercod]

Fantastic resource. Thanks for the link.