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To: Rule of Law
Your interpretation seems not to be the way the commerce clause was read in early American law.

From The United States v. the William (28 Fed. Cas. 614, no. 16,700 D.Mass. 1808):

Furthermore, the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but, the national right, or power, under the constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to me unquestionable.

Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823)

Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on...

Justice Marshall in Brown v. Maryland (12 Wheat. 419 1827):

It may be doubted whether any of the evils proceeding from the feebleness of the federal government contributed more to that great revolution which introduced the present system, than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity.

This is not the "destruction of limited government." One of the enumerated powers of Congress is the power to regulate commerce between the states. The power has a clear limit: there is no power granted to Congress to regulate the commerce that takes place within the borders of a state. Most cases in which the Congressional power to regulate commerce has been limited by the Courts involve the distinction between intra- and inter-state commerce, as this article indicates.

The general rule was clearly articulated in Carter v. Carter Coal Co., 298 U.S. 238, 303, 56 S.Ct. 855 (1936):

One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In respect to the former, he is subject only to regulation by the state; in respect to the latter, to regulation only by the federal government.

I have not found cases where the commerce clause was interpreted as having limits on the ends to which interstate commerce could be regulated.

The problems to which you refer were of course in mind when the Framers met, but in fact they didn't write: "No state shall lay tarrifs on goods imported from any other state; nor prohibit the importation of goods from any other state." They explicitly assigned to the general government a power to regulate commerce between the states, stated in general terms, with no specification as to its objects or purposes.

Most of the abuse of the commerce clause has been through strained definitions of interstate commerce. In the present case, it seems me quite obvious that internet sales are interstate commerce. I would oppose as bad policy most regulation of such sales, but not on constitutional grounds.

Nor does this interpretation detract from any powers reserved to the state. It does not propose the federal prohibition of the making of virtual child porn, which, according to the rule cited above, is a matter for state action. It suggests that it would be constitutional to prohibit offering such images for sale across state or national borders.

Furthermore, the internet poses new problems of regulation which the 18th century did not foresee. However, the Framers did not give the commerce clause a narrow guage, precisely because they were not only concerned with a specific set of contemporary issues, but because they recognized that interstate commerce would inevitably present continual complications which required federal oversight. As Madison wrote to Monroe in 1785, as the defects of the Articles were becoming clear:

Viewing in the abstract the question whether the power of regulating trade, to a certain degree at least, ought to be vested in Congress, it appears to me not to admit of a doubt, but that it should be decided in the affirmative. If it be necessary to regulate trade at all, it surely is necessary to lodge the power, where trade can be regulated with effect, and experience has confirmed what reason foresaw, that it can never be so regulated by the States acting in their separate capacities. They can no more exercise this power separately, than they could separately carry on war, or separately form treaties of alliance or Commerce. The nature of the thing therefore proves the former power, no less than the latter, to be within the reason of the foederal Constitution.

Your reading seems to me to be controlled by your idea of what a "limited government" ought to be, rather than by a real examination of original meaning.

214 posted on 04/26/2002 8:17:26 PM PDT by Southern Federalist
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To: Southern Federalist
Your interpretation seems not to be the way the commerce clause was read in early American law.

In Federalist #42, James Madison explained the purpose of the "Commerce Clause".

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

As you can see, the interpretation I advance agrees with Madison's.

215 posted on 04/29/2002 10:07:12 AM PDT by Rule of Law
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