Commerce Clause Research 5-5-2015 #1

 [8-17-2025: I am going through my prison journal, but this is not part of that journal. The federal government provided us with a free law library - LexisNexis, to be precise - and there came a time I decided to research the law that got me into prison, the Constitution's Commerce Clause. In law school, they teach us the law as it is, for that is what we must deal with for our clients. I took a slightly different approach, what I call a genealogical approach. Long ago, but after law school, I learned there is often a drift in judicial interpretations. This drift was not part of my education. That it happens is not as much a concern as where the law is at the time one has a case; the main stream of interpretation and any anomalies. My public defender had given me Gonzales v. Raich to read while in was in pretrial detention in 2010; four years later I decided to find the sources of that case. My conclusion to all this research (and there will be a lot of this to post) is that the United Supreme Court has expanded and extended the Commerce Clause into a national police power that is not curbed by any constitutional provision, only by the political will of Congress, and can bring the power of the federal government into the most minute aspect of American lives. I thought that terrifying in 2014; today it poses a horrendous threat.

I will note that this present post may well be the rawest version of the notes. However, time and the mailing around and the shifts in their storage will make these posts messy. That and their apparent irrelevance to the lives of most people will probably drive most of you away from reading them. I ask for your patience, for they are relevant to your lives, since your lives are tangled in the jurisdiction of the Commerce Clause. 

I will end by saying that Caminetti v. United States, 242 U.S. 470 (1917) is the most important Commerce Clause case I never heard mentioned in law school, and is the key to modern Commerce Clause jurisprudence.

I will finish this part as I always preface my prison journal entries: What you are reading is what you get for your tax dollars.

sch.]

Caminetti

The transportation of passengers in interstate commerce has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interestate commerce free from immoral and injurious uses, has been been frequently sustainted, and it is no longer open to question.

 379 US 241, 256, 13 L.Ed.2d 258, 267-68

...In none of the cases was it charged or proved that the transportation was for gain or for the purpose of furnishing women for prostitution for hire, and it is insisted that, such being the case, the acts charged and proved, upon which conviction was had, do not come within the statute.

 242 U. S. 485

 ...To cause a woman or girl to be transported for the purposes of debauchery, and for an immoral purpose, to-wit, becoming a concubine or mistress, for which Caminetti and Diggs were convicted; or to transport an unmarried woman, under eighteen years of age, with the intent to induce her to engage in prostitution, debauchery, and other immoral practices, for which Hays was convicted, would seem by the very statement of the facts to embrace transportation for purposes denounced by the act, and therefore fairly within its meaning.

Page 242 U. S. 486

 While such immoral purpose would be more culpable in morals and attributed to baser motives if accompanied with the expectation of pecuniary gain, such considerations do not prevent the lesser offense against morals of furnishing transportation in order that a woman may be debauched, or become a mistress or a concubine, from being the execution of purposes within the meaning of this law. To say the contrary would shock the common understanding of what constitutes an immoral purpose when those terms are applied, as here, to sexual relations.

Page 242 U. S. 486

 sch

[8/17/2025: Caminetti will later be cited as upholding Congress protecting civil rights through the Commerce Clause and the conviction of Raich for growing marijuana in Gonzales v. Raich. What might actually shock us in these days of MAGA is that it was the then-liberal wing and concurrence by Justice Scalia that upheld Raich's conviction; Justice O'Connor and the then-conservative wing that would have limited the reach of the Commerce Clause. Congress can regulate anything, including morals, under the Interstate Commerce Clause. What did Caminetti do? He took his mistress across the California state line to Nevada for fun and games. sch.]