Law students study Constitutional Law, Con-law for short.
They read about the Commerce Clause. Maybe they're not interested in commerce. Maybe they want to do criminal law. So why do they have to study the Commerce Clause in Con-law class. There's lots of cases and they take a long time to read and re-read so you understand what they are telling you.
They're not telling the student about commerce so much as they are of power. Whose power? Congress's usually, although it might be the power of the state legislature or governor. We read cases about railroads, they're in interstate commerce, right? They cross state lines all day long going back and forth across the country. And trucks. Same story. And cows. Cows? I thought they lived on farms. They do, but, see, the farmer buys them from herds in other states quite often, at livestock auctions and state fairs. And the milk, that's sold to the local milk cooperative and put into big tanker trucks (those trucks again, that roll down the highways) or railroad tanker cars (railroad tracks crossing the country, again), and sold outside the state where the cow was milked. So cows are in interstated commerce just like the milk, butter and cheese they produce, with the farmer's help of course. Farmers, it turns out are in interstate commerce, even when shoveling out the barn. Imagine that.
Now the farmer knew that his local county and state rules governed him on the farm. But did he know that the long arm of Uncle Sam, the Congress, and the President, were all looking over his shoulder as he shoveled out the barn out in the boonies of farm country? He might not love it, but he knows. Farmers go to school, too. And there's always the local county agent, who both teaches and reports back to HQ in Washington, D.C. So the farmer know what he has to do.
So why do law students who want to practice law in the big city for corporations or businesses or landlords and tenants or husbands and wives or criminal defendants have to read about cows, trucks, and railroads. Isn't that a little off the point?
It's not about cows, trucks and railways. It's about power.
Here's how it works. I put it down here because I explain it in class, and sometimes it goes in one ear and out the other. The student doesn't realize how much he or she (I usually drop the "or she" on the ground it's the fault of the English language, not me, for not having a good word that covers all genders. "It" doesn't quite cut it for me.) really knows.
When the Framers, the Founding Fathers, set up the country the way the did, the allocated power. That's what it was all about. The American Revolution was about cutting King George III's power over us, the 13 Colonies, and setting up our own new government without any damn kings. The republican principle, this is called. Pro- the people, con- any monarchs. We were all republicans, small 'r,' then. If you wanted to really tick off your political opponent you accused him of being secretly pro-monarch. Jefferson did that a lot to Hamilton and Adams and it really bugged them. They did want a central government that had power enough to do the job, but they didn't really want any monarchs back in power any more than Jefferson and his pal Madison did.
What the Framers did was to call a convention of delegates from the 13 former colonies, now called states, once having overthrown the king, to set up this new government, which they did in the summer of 1787 in Philadelphia. You can visit the rooms where they did this if you go there. Make sure to get the admission tickets a few blocks away at the visitor center first, though, otherwise you'll waste a lot of time on line. Don't ask how I know this. You won't find it in any lawbook, my son, Rick, and I can tell you.
And when the Thirteen set up the new One, a good number of the delegates didn't want the One to be too powerful. The states were where the action was, and that's how many of them wanted to keep it.
So they figured, "Let's just give the new central government just enough power to do the job, and we'll hold onto the rest."
Let it run the army and navy, if we should need those, but not much else. We had no navy after the British sailed away. We hated "standing armies" based on the unwelcome treatment received at the hands of the British troops in Boston. You can see this reflected in the Constitution where it says that Congress shall have the power to create a navy if it wants, but as to armies, if it creates an army (it didn't, for a long time) the army's budget has to come up every two years for review, but not the navy's. Navies didn't quarter themselves in your upstairs bedroom next to your daughter's room.
The power to coin money, that was handed over to the national government. Every state had been printing money and it was worthless.
Commerce. What about commerce? That was handed over also. Congress was given the power to regulate commerce with foreign nations, among the states and with the Indian tribes. Trading with the Indians was made a matter of national, not state concern. Otherwise we might have thirteen different policies regulating trading alcohol and muskets to Indian tribes. That might not work.
In class the other night a student presented a summary of a case (Seminole v. Florida) where Congress passed a law requiring the states to negotiate in good faith with Indian tribes that wanted to open gaming casinos on their reservations within the states. The case came up when a state didn't negotiate at all, much less in good faith, so the tribe sued the state, based on the authoritiy of the statute.
I had just read the Commerce Clause (Art. I, Sec. 8, Cl. 3) to the class. Foreign, interstate, and Indian commerce. Congress. Power to regulate. Handed over by the original thirteen states. Got it? Good.
I asked the student, "Where does Congress get the authority to pass a law that tells a state it must negotiate in good faith with an Indian tribe?" The student was stuck. They all seemed stuck. There's nothing in the Constitution about 'negotiating in good faith.'
"I just gave you the answer not five minutes ago," I said. "You forgot. Already. Wow.
"The Indian Commerce clause," I suggested, and we got past that. The students had the knowledge, the information. They just hadn't collated it for the first time, that is, put it together with a factual situation. After this exchange, they'll remember. That's the way studying law is. We put stuff into compartments and then forget we put it there. We need to be reminded. That's what exams are for, and studying for them. We loosen up the synapses that way.
In the early days of the country, a question arose about this Commerce power given by the states to the national government, Congress. Did the states give it all, or did they hold some back? How would you know? It doesn't say in the Constitution. All it says is that Congress shall have the power. So they fought over that for years. What happened if something needed regulation but Congress hadn't regulated in that area yet? Could the states fill in the gap by passing laws themselves? Yes, to a limited extent, under their police powers. This was the big holdback.
The thirteen original states not only held back the police power, but they passed an amendment stating that any power they hadn't already handed over was being held in reserve by the people and the states. Kind of a dual holdback, as though they might not have been sure where residual rights resided, with the states or the people who, in democratic theory, have power over the states.
The police power consists of regulations promoting health, safety, welfare and morals. Did you know that the federal government doesn't have that power? At least not as granted in the main grant of powers, Art. I, Sec. 8. There you'll find a list of 18 powers, 1-17 plus the capper. That's the one that says Congress shall have the power to make all laws "necessary and proper" to carry out the first seventeen plus any other power found in the Constitution. They argued over how broad that power was, too. McCulloch v. Maryland, (1819). Plenty broad was the answer, not narrow. If Congress has the power to achieve a goal, it has the power to establish the means. Seems pretty simple, looking back on it from this distance, but that was a big deal back then. Opponents of a strong national government feared it might become too strong, and reduce state power. States rights were important to preserve, according to these opponents, of whom Thomas Jefferson was the leader, along with, surprisingly, Madison, the leading architect for the national structure. You might think the people who set up the United States would like it to grow and become powerful. Just the opposite. They were afraid that if the national government became powerful enough to tell the states what to do, some of those northern states might start agitating to put an end to slavery. In that case, some of the southern states were prepared for a divorce from the union, called secession, which they actually did, later.
As time went by, a compromise of sorts was reached, such that while it was expected that the federal government would regulate as to national issues, the states were allowed to regulate as to local issues, provided there was no conflict. Philadelphia (as the subdivision of a state) was thus allowed to require ships approaching the port to hire a local pilot to avoid the shoals, etc. That was Cooley, the Harbor Pilots case, 1851, and accounts for why I have a link to the Sandy Hook Pilots of New York elsewhere.
But this is tday. Haven't we ironed out what power Congress has vis-a-vis the states by now? Nope. We're still arguing over it each time Congress tries to regulate in some new area hoping to correct some new problem. It's still the states vs. Congress, and the states rights issue (called the new states rights or the new federalism) is still a big issue.
This conflict between Congress, or the federal government and the states has a name. Federalism.
Every year the Supreme Court seems to take up a case or two on federalism. It keeps trying to draw the line, case by case. It becomes sort of like playing follow the dots, each case representing a dot. The picture seems a little fuzzy, making it hard to predict on which side of the state-federal line the next dot is going to land. When the decision comes out 5:4, you can understand why it was so hard, in advance, to guess the outcome, no matter how much Con-law you thought you might know.
Why keep fighting this same battle repeatedly? Same battle, in different contexts? Well, we do seem still to have the states on the one hand and the national government, called the United States of America, to give it its proper name, on the other. And as long as we're set up that way in the Constitution, maybe we shouldn't ignore it. But the country has grown so since the days of John Marshall, who defined the structure of government so much, in the sense that he fleshed out the bare words with useful theory. Why shouldn't the national government exercise broad power? Should we fear putting the states out of business?
Does that seem realistic? The states have an awful lot of power that they didn't hand over. All that police power over health, safety, welfare and morals. Take a look at all the state codes the next time you're in a law library (Not all lawyers buy walls of books, since they're now online.)and notice all the subject areas covered by state law. The federal government would never be able to pay attention to all those local concerns. Not without creating a lot of departments that would look suspiciciously like states. I think the states will remain in business for the foreseeable future, unless I'm badly mistaken, but that's just a wild guess, I admit.
What happens when the Supreme Court tells Congress it doesn't have the power to pass legislation in certain areas? It represents a "narrowing of the nation's power," to use the words of John Noonan, a law professor and senior judge of the U.S. 9th Circuit Court of Appeals, in his bood by that name (U.C. Press, 2002). He doesn't see why states have to be treated with kid gloves when it comes to Congress having the power to order states how to behave in areas where Congress was given the power to make law, such as regarding commerce with the Indian tribes, and interstate and foreign commerce generally.
If the Court doesn't grasp the limits of the Commerce Power to tell Congress to pull in its horns, it resorts to some other doctrine. During the Depression it was the Non-Delegation Duty. If Congress set up an administrative agency without being specific enough as to what powers Congress granted the agency, the Court was apt to tell Congress it over-granted power, handing legislative power over to an executive agency, a violation of separation of powers among the three branches, legislative, executive, and judicial.
Today it is more likely that the Court will protect the states on the basis of the Eleventh Amendment, which has been held to prohibit a state from being sued without its consent on the basis of something called sovereign immunity. That's what King George III, enjoyed, and I thought we got rid of him, courtesy of George Washington, his troops, and the French Navy under Admiral DeGrasse at Chesapeake Bay at the time of the battle of Yorktown and Gen. Cornwallis.
I don't see the states wearing little crowns, so I don't know why they're un-suable. States live in the courts. All the criminal prosecutions are lawsuits brought in the name of the People of the State. It's hard to see how a state is stripped of its dignity by sending its lawyer into court to argue a case. State lawyers are there anyway.
One argument that struck me, that I don't have an answer for, was made by the federal judge in the recent Maxwell case where he declared unconstitutional an act of Congress for to possess child pornography. We can all agree child pornography is bad and should be against the law. The only question is whether the states should pass such laws or Congress. If the porn is carried across state lines, I can see Congress regulating (prohibiting) it criminally. But suppose, as in the Maxwell, case, a guy downloaded some porn onto his hard drive for his own private viewing and his old lady, fed up with him, called the feds who prosecuted him. Was Congress within its powers to pass laws making it a crime to possess porn on a disk on one's own home. Under the Commerce Clause? How did the man corrupt interstate commerce? Did he substantially affect it? Was Congress regulating the channels or instrumentalities of interstate or foreign commerce? It's hard to see the hard disk in question to be an instrumentality or channel of commerce, either.
The lower court federal judge held that the Commerce Power wasn't quite so broad or extensive to reach the man's personal computer in his home, even if it was manufactured outside of state. Too local. Not national.
This is legitimate, pointed out the judge, because we have this dual system of government, state and federal, and the state serves as a check on the federal, to preven federal overreaching. So THAT'S why we have federalism problems, because the states are part of our system of checks and balances. Okay. It's just that I'd been used to thinking of checks and balances in a different way. I'd thought that the federal government had been established in three division, like the leaves on a three-leaf clover, legislative, executive, and judicial, so that each could serve as a check on the other. That's what the Supreme Court does when it tells the president or Congress thay can't do that, like throw people in jail indefinitely in Guantanamo without a lawyer, a hearing, or access to court, as in the Hamdi case. It violates Magna Carta, er...ah, excuse, me, Due Process. You'd think someone in the White House would've read Magna ..., I mean the Constitution. We needed the Supreme Court to tell the White House and Congress (which passed the Patriot Act that authorized the president) this? Liberty? Procedural due process? The Barons at Runnymede? You and I could've told them. They must've panicked and dropped the Constitution for fear of Osama Bin Laden. With the Constitution we're nearly impervious; without it we probably don't need to be saved, we'd be too far gone already.
In Con-law class, when it comes to struggles over the structure of government, the fight is always over which branch of government has the power or whether the branch that had it overreached at the expense of another part of government. If the three parts of the federal government are in a tug-of-war over power we call that a fight over issues of "Separation of Powers." As mentioned, when the fight is between the federal and state governments, it's called a fight over an issue of "Federalism."
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