Posted on 08/22/2006 11:24:35 AM PDT by AZRepublican
Commerce with foreign Nations, the Indian tribes, or among the several States. "To regulate" is to erect barriers to commerce as well as to tear them down.
"The prohibition against importation of slaves was an exception to commerce involving importation from abroad"
An exception? That very same year, "Jefferson's Embargo" cut off all trade with Europe.
In 1842, Congress forbade the importation of obscene literature or pictures from abroad. In 1848, it passed an act ''to prevent the importation of spurious and adulterated drugs''. In 1887, the importation of opium was prohibited and in 1897, Congress forbade the importation of any tea ''inferior in purity, quality, and fitness for consumption".
"If we take your analysis latterly, then there would have been no need for the 13th amendment."
The 13th freed the slaves already here.
To answer your question, the commerce clause was used early on to prohibit commerce with foreign Nations and with the Indian tribes. It wasn't until 1884 that certain commerce among the several states was prohibited.
Barnett looks for any word containing r-e-g-u-l-a-t and attempts to apply exactly the same definition. "To regulate commerce", "well regulated militia", "rules and regulations" -- all mean the same to him. According to him, I suppose if I were to "regulate the thermostat" to get comfortable, that means I allow the thermostat, or encourage the thermostat, or "make it regular" -- whatever that means.
To regulate commerce is to control it, erecting or tearing down barriers. Any comment on Madison's words in post #3 of your link?
"Obviously, Marshall would limit the power of a sovereign state to Constitutional bounds. -- Check out his Marbury opinion."
Yes he would. What's your point?
In 1842, Congress forbade the importation of obscene literature or pictures from abroad. In 1848, it passed an act ''to prevent the importation of spurious and adulterated drugs''. In 1887, the importation of opium was prohibited and in 1897, Congress forbade the importation of any tea ''inferior in purity, quality, and fitness for consumption".
All your examples you post deal with regulating commerce with foreign nations and not interstate commerce within the interior.
"Jefferson's Embargo" of 1807-1808 was based on the power of the commerce clause. Prohibiting the importation of slaves in 1808 was also a commerce clause power.
Congress has a separate power to impose duties, yes. The power to make treaties is an executive branch power, not a legislative one.
"All your examples you post deal with regulating commerce with foreign nations and not interstate commerce within the interior."
Yes. It was to rebut your statement that "Encouraging and facilitating commerce was intended between foreign countries".
As I said earlier, interstate commerce was not prohibited until 1884. That year, the shipment in interstate commerce of livestock having any infectious disease was forbidden. A statute passed in 1905 forbade the interstate commerce of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation. In 1912, a similar exclusion of diseased nursery stock was decreed.
The courts cited the decision in Brown v. Houston, 114 U.S. 622 (1885) which said, "The power to regulate commerce among the several states is granted to congress in terms as absolute as is the power to regulate commerce with foreign nations."
bump
"-- it appears that the definition of "to regulate" also includes "to prohibit".
--- I see nothing in the wording of the commerce clause that limits Congress to only the remedy you mentioned. As I pointed out, the commerce clause was used early on to prohibit commerce. --"
Paulsen is a prohibitionist, -- guns, drugs, 'sin', -- you name it, he wants any level of gov't to have the power to prohibit most anything.
The 10th says they have no such delegated powers:
The power to regulate v. the power to prohibit
Address:http://www.freerepublic.com/focus/f-news/1419654/posts?page=1
Barnett supports the clear constitutional position that; "--- the power of Congress to "well-regulate" commerce among the states does not include the power to forbid or prohibit commerce. --"
"--- Where did you get "well-regulate" -- your copy of Article I, Section 10 contain that phrase?
Oh, and check out post #3 of your link. It appears that Founding Father James Madison disagrees with your Mr. Barnett. --"
Read the link. - Barnett was referring to the power to 'well regulate' militias, not to prohibit them. -- In that same sense Congress has the power to regulate - but not prohibit commerce among the States.
Barnett looks for any word containing r-e-g-u-l-a-t and attempts to apply exactly the same definition. "To regulate commerce", "well regulated militia", "rules and regulations" -- all mean the same to him. According to him, I suppose if I were to "regulate the thermostat" to get comfortable, that means I allow the thermostat, or encourage the thermostat, or "make it regular" -- whatever that means.
You're pretending you can't understand Barnett, -- what's your point?
As to Marshall's quote: "--The power of a sovereign state over commerce, therefore, amounts to nothing more than a power to limit and restrain it at pleasure --"
--- Obviously, Marshall would limit the power of a sovereign state to Constitutional bounds. -- Check out his Marbury opinion.
Yes he would. What's your point?
I'm countering your confused 'point', as you well know -but won't admit.
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. Much indeed is it to be wished, as I conceive, that no regulations of trade, that is to say, no restriction or imposts whatever, were necessary. Source
"If it be necessary to regulate trade at all ..." Madison doesn't know whether such regulation will be necessary. "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." He doesn't want the states to have that power. But he does leave open just how and how much the federal government will do to regulate trade.
In his old age, he was apt to fudge things. There's a lot in what he says about the reasons for giving the federal goverment the power (he doesn't want the states meddling). But it's clear that he did at least admit the possibility in his youth that the federal goverment would make use of the power given to it and denied the states by the Constitution.
The Commerce clause isn't a grant of sweeping powers to the federal government to do what it likes, but it is a pretty clear authorization of regulatory power over interstate commerce to the federal government.
Think about later bump
Like the article said, there was an attempt to give Congress sole and exlusive power over commerce early on, but it was shot down.
The courts cited the decision in Brown v. Houston, 114 U.S. 622 (1885) which said, "The power to regulate commerce among the several states is granted to congress in terms as absolute as is the power to regulate commerce with foreign nations."
Incidently, Madison updated his blog entry, a good read.
Where? The latest entry is what is posted above.
No.
The clause gave exclusive authority to collect revenue from imports from foreign countries, and prohibited States fortunate enough to posses ports from collecting taxes from their not-so-fortunate neighbor States.
The Federalist No. 42 James Madison
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
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Joseph Story, Commentaries on the Constitution
§ 1075 The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited.
>Where? The latest entry is what is posted above.
hmmmm I had to do a refresh, try it again and refresh, should see "update" at the top.
Prohibition is the extreme of regulation. You have the right to regulate those who enter your home and that includes the right to prohibit some. Regulation goes from one extreme having no barriers or impediments against commerce through having some to having a complete barrier.
Sparta regulated its foreign trade by banning it.
Madison changed his mind about many of his beliefs after Jefferson returned to the US from France. Prior to that Madison was more Hamiltonian than Hamilton. After that he turned against his former close ally and fought almost all that the latter proposed.
Sorry. Figured that kinda went without saying since it precedes clause 3.
(Not to pick nits, but there is no 'section 8', its Section 8, clause 1)
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
All the following clauses are affected by this broad enumerated power.
Section 2:
To borrow Money on the credit of the United States;
This was for the sole purpose of implementing the original, broader 1st clause.
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The Constitution is written in the order it is for a REASON.
Congress is first (in Article I) because the Founders thought it would be the first of the seprate but equal branches to try to escape its enumerated authority.
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