Commerce Clause Research 5-5-2015 #2

   [8-19-2025: 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. 

The first paragraph of the actual post I found on a separate page. Not sure what else it goes with, but it is an accurate statement, so up here it goes. The following paragraphs start in a set of notes that start with the page number of 46. As I said, the originals are in a messy condition.

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.]

...the exact genesis of "channels of interstate commerce" lies in its static imagery or from being derived from statutory language, the phrase does cohabit better with the idea of Congressional power exceeding the merely commercial world of local business transactions.

Danciger v. Cooley, 248 U.S. 319, 63 L.ed. 266)  (1919) also provides a detailed description of the commercial realities that are summed up by "channels of interstate commerce". Danciger was another alcoholic beverages case pre-dating Prohibition.

...Thus, a state, although able effectively to prohibit the manufacture and sale of liquor within its own territory, was unable to prevent its introduction from other states through the channels of interstate commerce. Of course, the real purpose of the prohibitory laws was to prevent the use of liquor by cutting off the means of obtaining it. But, with the channels of interstate commerce open, those laws were failing in their purpose, for dealers in states where it was lawful to sell were supplying the wants of intending users in states where manufacture and sale were prohibited. This interstate business generally was carried on by means of orders transmitted through the mails and of shipments made according to some plan whereby ultimate delivery was dependent on payment of the purchase price. The plans varied in detail, but not in principle or result. All included the collection of the purchase price at the point of destination before or on delivery. One made the carrier having the shipment the collecting agent; another committed the collections to a separate carrier, the liquor being forwarded as railroad freight, and the bill of lading being sent to an express company with instructions to hand it to the buyer when the money was paid, and still another made use of an agent, such as Cooley was here, the bill of lading being sent to him with a sight draft on the buyer for the purchase price..... 248 U. S. 323-244

Here we have communications between states, between consumer and manufacturing, creating a contractual relationship ending in the shipment of manufacturers goods across state lines to the consumer. This passage should be studied by those advocates of the states legalizing marijuana. Continuity having a great importance in the law, no one ought find any surprises so far in these post-Caminetti cases.

Caminetti's absence may surprise. Caminetti does appear in United States v. Hill - as one authority in a string of other cases. One might expect an appearance in Alpers, with its obscene recordings, but there is none. Nor is there one in United States v. Sheridan. Caminetti's tone emerges in North American Co. v. Securities & Exch. Com., 327 U.S. 686, 90 L.ed 945 (1946).

But the concentrated ownership of voting securities is the prime method of achieving control, constituting a more fundamental part of holding companies than of other types of business. Public utility holding companies are thereby able to build their gas and electric utility systems, often gerrymandered in such ways as to bear no relation to economy of operation or to effective regulation. The control arising from this ownership of securities also allows such holding companies to exact unreasonable fees, commissions, and other charges from their subsidiaries, to make undue profits from the handling of the issue, sale, and exchange of securities for their subsidiaries, to issue unsound securities of their own based upon the inflated value of the subsidiaries, and to affect adversely the accounting practices and the rate and dividend policies of the subsidiaries. See § 1(b). 

Congress has found that all of these various abuses and evils occur and are spread and perpetuated through the mails and the channels of interstate commerce....

327 U.S. at 701 -02.

***

...Such statements [Congressional policy statements] would be utterly meaningless in the light of reality were they not premised upon the ownership of securities by holding companies and the use of that ownership to burden and affect the channels of interstate commerce.

327 U.S. at 703, 90 L.ed at 957. 

From these premises, Justice Murphy proceeded to this crescendo:

...It is sufficient to reiterate the well settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature. Brooks v. United States, 267 U. S. 432, 267 U. S. 436-437. This power permits Congress to attack an evil directly at its source, provided that the evil bears a substantial relationship to interstate commerce. 

327 U. S. at 706, 90 L.ed at 959 

That the language here brings Caminetti to mind may be due to Brooks citing to Caminetti at 267 U.S. 432, 437. In my opinion, Justice Murphy introduces an important point which he will refine in American P. & L. Co v. Securities and E. Com, 329 U.S. 90, 91L.ed 103 (1946).

Congress thus has power to make direct assault upon such economic evils as those relating to labor relations, Labor Board v. Jones & Laughlin Corp., 301 U. S. 1; Polish Nat. Alliance v. Labor Board, 322 U. S. 643; to wages and hours, United States v. Darby, supra; to market transactions, Stafford v. Wallace, 258 U. S. 495; Chicago Board of Trade v. Olsen, 262 U. S. 1, and to monopolistic practices, Northern Securities Co. v. United States, supra. The fact that an evil may involve a corporation's financial practices, its business structure, or its security portfolio does not detract from the power of Congress under the commerce clause to promulgate rules in order to destroy that evil. Once it is established that the evil concerns or affects commerce in more states that one, Congress may act. 

327 U.S. at 705–06.

sch

[8/19/2025: while typing this section I ran across the date of 6/1/12, so these notes may be even older, but I see no other dates and so will leave the title unchanged. This gets us up to page 49 of the notes. sch.]