Re: Interstate commerce...
- From: Demon Buddha <Nobody@xxxxxxxx>
- Date: Tue, 06 Oct 2009 22:45:18 -0400
Peter Franks wrote:
If you are interested in finding out more, there is an essay that discusses the history of the Commerce Clause:
I find the analysis complete and comprehensive, however the conclusions are wrong.
Thanks, I will give it a read.
I'd like to know what you think --
Interesting read. The author goes to some pain to point out what I have always thought of as an obvious concern in "interpretation" of documents of any age, but that many (most??) people appear to wholly fail to recognize, much less even vaguely appreciate. To wit, and with regard to the actual meanings of specific terms critical to a proper understanding of (in this case) the Commerce Clause:
"The sampling did not pick up dictionary definitions. Dictionaries are, at best, a sampling of usages from some other time or place. There is considerable danger in using dictionary definitions to smuggle quotes out of context and from unrelated controversies into the constitutional text. A dictionary definition seems like the best way to infect the archeological site with artifacts from another place and time."
That they are well aware of this problem speaks well of their academic skills as they apply to the topic in question. What was most interesting was the statement that during the time of the debates and ratification, the term "commerce" referred exclusively to international trade. Therefore, trade between the states is NOT commerce in the original meaning of the Commerce Clause. Given this, I would tend to wonder whether every court decision on the issue is in fact invalid due to this gross misuse of "commerce". In addition, it appears that "regulation of commerce" most often specifically meant "taxation of commerce". The Commerce Clause was, more than anything else, about issues of taxation on the imports coming into the USA. The apparent main thrust of this regulation was to federalize the imposts received from ports such as New York harbor in order to pay the Revolutionary War debts. This was, IMO, very short-sighted on the part of the framers because it means that the Commerce Clause does not speak to a generalized principle upon which the structure and powers of government are based, but to a very narrow (at best) and temporal concern of the framers which IMO could have been treated in a better manner. It seems to me that truth about the Commerce Clause pollutes the grace, elegance, and purity of the Constitution. I must say that I am rather shocked by this revelation.
The Commerce Clause (CC) refers *specifically* to four commerce programs that were being debated at the time just prior to ratification and none of which held any strong support in the nation, which makes its inclusion in the document all the more puzzling. Furthermore, it indicates to me that the CC is in several respects an invalid artifact that perhaps should be excised from the Constitution and, if necessary, replaced with something that frames a more generalized principle. I say this because apparently it covered a lot of territory - too much it would seem to me. I think the normalization of taxation between the states would be an important thing to keep, lest we got ourselves into state to state tariff wars, which would sink the nation in a very short time. The paper seems to confirm my opinion on this:
"Section 8 of Article 1 also gives Congress the power to raise taxes on its own, including imposts, and Section 10 prohibits state imposts. Thus the revenue issues were adequately covered elsewhere and did not need the Commerce Clause."
The history contained in the paper is fascinating - all stuff I never knew. The whole story of the way NY and RI vetoed federal taxation powers so they could maintain their local monopolies on commercial imposts was very enlightening as well as entertaining. I was also very interested to learn that the Articles Of Confederation allowed the federal government to collect taxes ONLY by requisition - it had no power to tax, but could only beg. Just as it should be. :)
Anyhow, the paper is an interesting read, though it left me with a few more questions, which I suppose may be a good thing.
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- From: Peter Franks
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