Busting Congress' Interstate Commerce Myth

The Federalist Blog ^ | August 21, 2006 | P.A Madison

[AZRepublican]

Dear robertpaulsen:

Allow me to ask you a really stupid question: Do you agree the objective of regulating commerce among states as found in the constitution was to remedy one state from imposing duties on another states trade as passed through that state?

A simple yes or now will be fine.

[MamaTexan]

A simple yes or now will be fine.

Good luck with that.

[tpaine]

I see we're all in agreement that paulsen is incapable of complying with the rules of rational discourse.

[robertpaulsen]

"PROTECT AND FOSTER. The Founders thought unnecessary taxation abhorrent. They were to 'protect and foster' domestic manufacturers by taxing (and regulating) foreign trade."

Nothing about interstate there.

"Again, a tax on imports ENCOURAGES manufacture."

Nothing about interstate there either.

"When the States tried to tax imports, it created chaos because there were so many variations from State to State.

Nothing about interstate there either. Why is it that when I mention foreign trade in reply to your posts on foreign trade, you get in a tizzy about how it isn't interstate trade? But, post after post, YOU reference foreign trade.

Now, one of two things. Either you stop bringing up foreign trade or you allow me to respond to it without getting all sarcastic.

"Do you honestly think the sovereign States would turn over absolute control of their manufacturing and commerce to a newly-created and unknown entity?"

Nope. Under the Commerce Clause, Congress may only regulate commerce among the several states. Congress may not regulate the wholly internal manufacturing/commerce within the state.

"BTW, Madison wrote more than one letter to Cabell. Here's the second one-"

Madison's second letter is referring the dormant commerce clause: that is, absent any commerce regulation from Congress, states were free to use the commerce clause to settle their differences in federal court without Congress having to pass statute after statute. That's why the power to regulate commerce among the states was never taken away from the states in Article I, Section 10.

Congress certainly has the power to regulate this interstate trade and can pass laws to remedy any interstate disputes. As you mentioned before, this remedial power could have been lodged solely with Congress, allowing Congress to act for the good of all the people -- the general government.

But, as written, the commerce clause can be (and is) used "by the states themselves" as a negative and preventative provision against injustice without going to Congress. If State A taxed goods passing through it, other states could take State A to federal court to determine if this action impeded the free flow of goods. The court would act as arbiter.

I would guess that almost all interstate conflicts are resolved in federal court using the dormant commerce clause. Very rarely does Congress get involved in these inter-state disputes, contrary to your claim that this was THE main reason for the commerce clause.

[robertpaulsen]

"Do you agree the objective of regulating commerce among states as found in the constitution was to remedy one state from imposing duties on another states trade as passed through that state?"

THE objective? No.

[MamaTexan]

Nothing about interstate there either.

Did it ever occur to you that you are the one still asserting that the power to regulate interstate commerce IS there....even though you and I have both agreed that it ISN'T?

-----

But, post after post, YOU reference foreign trade

LOL! Could it be those are from the source YOU posted to back up YOUR assertion that the Constitution grants authority over interstate commerce, but all the source references is 'foreign trade'? (You really didn't read it, did you?)

-----

Either you stop bringing up foreign trade or you allow me to respond to it without getting all sarcastic.

Bite me. You are not forced against your will to respond to my posts.

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Congress may only regulate commerce among the several states.

That's right, the political entities known as States...when the States trade with each other. NOT the physical movement of goods across a geophysical boundary.

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Madison's second letter is referring the dormant commerce clause

1) Madison stated the original intent and purpose of the commerce clause.

2) The word 'dormant' never appears in his letter.

3)Finlaw shows 2 decisions concerning the commerce clause, one in 1847 and one in 1849. Madison's letter was written almost 20 years before those decisions.

4) Your source also states-
but, despite the fact that much ink was shed in multiple opinions discussing the questions, nothing definitive emerged.

So what's your point?

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Very rarely does Congress get involved in these inter-state disputes, contrary to your claim that this was THE main reason for the commerce clause.

Still nothing to back up you assertions, just another claim that your correct.

BTW-The federal/national government doesn't 'get involved' in interstate disputes because the Constitution gives it appellate jurisdiction, not original jurisdiction in areas where the States cannot come to a resolution on their own. The States can appeal to the federal government for arbitration.

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Still no rational argument, just complaints about how/what I post.

No sources to bolster you argument, either.

Good day.

[AZRepublican]

Interesting revison robertpaulsen. One more pesky question for you: Since you feel congress has de facto power over commerce among the states, wouldn't the power to tax exports, directing shipping to enter ports of one state over another be a significant power of regulating commerce among states and nations?

[MamaTexan]

Since you feel congress has de facto power over commerce among the states, wouldn't the power to tax exports, directing shipping to enter ports of one state over another be a significant power of regulating commerce among states and nations?

Sir!

How dare you display such flawless logic!

:-)

[robertpaulsen]

"That's right, the political entities known as States...when the States trade with each other. NOT the physical movement of goods across a geophysical boundary."

Interstate commerce is, BY DEFINITION, "the physical movement of goods across a geophysical boundary". What the heck are you babbling about?

"1) Madison stated the original intent and purpose of the commerce clause."

Yep. And I have no qualm with that.

What I object to is your assertion that it is the sole purpose of the commerce clause when you have shown absolutely nothing to back that up.

"The word 'dormant' never appears in his letter"

Correct. That's why they call it a "doctrine".

"Finlaw shows 2 decisions concerning the commerce clause, one in 1847 and one in 1849. Madison's letter was written almost 20 years before those decisions."

First of all, he's explaining the dormant doctrine (or principle) -- who cares when he does that? Plus, that explanation is in a private letter to an individual -- not a speech on the Senate floor or the language of a Bill.

Second, Findlaw mentions the first use of the term "dormant" by Chief Justice (and Founding Father) John Marshall in Willson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829), the same year as Madison's letter.

"So what's your point?"

My point? Gee, that makes one wonder if you have a comprehension problem or just like to use it when you have no actual response.

Here. I'll restate it for you. You're were wrong when you stated "One of the main functions of the newly created federal government was that is was to act as an arbitrator between the States." The dormant commerce clause allowed the states themselves to resolve their differences in federal court -- not through Congress passing laws removing barriers and encouraging commerce.

That's my point. Repeated again."Still nothing to back up you assertions, just another claim that your correct."

I gave you the "dormant" link. It mentions a ton of state cases. Check the footnotes. And your claim is backed up where?

"The federal/national government doesn't 'get involved' in interstate disputes because the Constitution gives it appellate jurisdiction, not original jurisdiction in areas where the States cannot come to a resolution on their own."

Well, so much for Mr. Story's claim that the federal government is going to run amok with the commerce clause and regulate everything, huh?

[robertpaulsen]

Yes or no again?

Yes, that would indeed be a significant power.

[MamaTexan]

Well, so much for Mr. Story's claim that the federal government is going to run amok with the commerce clause and regulate everything, huh?

When the Constitution says 'the United States', do you think it always means the entire country?

[robertpaulsen]

"When the Constitution says 'the United States', do you think it always means the entire country?"

Of course not. It means Cleveland, Ohio.

[MamaTexan]

Of course not. It means Cleveland, Ohio.

That sound you just heard was your last shred of credibility slipping away.

Again, good day.

[robertpaulsen]

"Again, good day."

Run away!

[old republic]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. I disagree with the assertion that the 9th and 10th amendments are not part of the Bill of Rights. They most certainly included in that categorically, both historically and in principle. The bill of rights was meant to restrict government power in order to secure the rights retained by the people. Though these amendments are more general, they attempt to do the same thing as the other 8, namely protect the rights of the people. The 9th amendment is explicitly about the rights of the people as is the the 10th amendment which protects not only the powers reserved to the states from federal encroachment but also those powers which the people have reserved to themselves to exercise as they see fit.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[old republic]

Nope. The source of government's authority is the U.S. Constitution. The People may not authorize the government to act contrary to the constitution.

And what is the source of the authority of the Constitution? The Constitution is of itself meaningless without the people. The declaration of Independence makes it very clear that just governments derive their authority from the consent of the governed, and the only reason that the Constitution is worth the paper it is written upon is because it represents the consent of the governed, and the rules under which they have consented to be governed. Make no qualms about it, in principle it is the consent of the people which has given the constitution and the government created under it any authority.