Commerce Clause Research 5-5-2015 #3

  [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. 

While typing the previous 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. The following paragraphs begin with the page number of 49. 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.]

 American P. & L. Co v. Securities and E. Com, 329 U.S. 90, 91L.ed 103 (1946)  relies heavily upon North American Co. v. Securities & Exch. Com., 327 U.S. 686, 90 L.ed 945 (1946).

Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. North American Co. v. SEC, supra; United States v. Darby, 312 U. S. 100; Brooks v. United States, 267 U. S. 432. Thus, to the extent that corporate business is transacted through such channels, affecting commerce in more states than one, Congress may act directly with respect to that business to protect what it conceives to be the national welfare....

329 U.S. at 99, 91 L.ed at 112 -13.

Justice Murphy referred again to Brooks, as he did in North American. Darby v. United States has already been seen as cited in Lopez v. United States. [8/19: And here I run into the first problem with trying to bring order out of disorder. Discussion of Darby appears to be in the missing pages, and it is unclear to what Lopez case I am referring. At this time, I assume the case is United States v. Lopez, 514 U.S. 549 (1995); it does refer to Darby. sch] Darby does not contain the phrase "channels of interstate commerce". The opinion goes on to hold congressional power over the channels of interstate commerce was limited only by the provisions of the federal constitution (529 U.S. at 100, 91 L.ed at 113), and concludes its [At this point on the page is the phrase "still good law" and Whitman v. American Trucking Assns, 531 U.S. 457 (2001). However, at this date, I do not recall what why there is the note or the citation. sch 8/19/2025] use of "channels of interstate commerce" with:

Since the mandates of § 11(b)(2) are directed solely to public utility holding company systems that use the channels of interstate commerce, the validity of that section under the commerce clause becomes apparent. It is designed to prevent the use of those channels to propagate and disseminate the evils which had been found to flow from unduly complicated systems and from inequitable distributions of voting power among security holders of the systems. Such evils are so inextricably entwined around the interstate business of the holding company systems as to present no serious question as to the power of Congress under the commerce clause to eradicate them.

329 U.S. at 100, 91 L.ed at 113

Which returns us to Hammer v. Dagenhart. Caminetti appears in the majority opinion as an example of Congress' power to protect the channels of interstate commerce.

In Gibbons v. Ogden, 9 Wheat. 1, Chief Justice Marshall, speaking for this court and defining the extent and nature of the commerce power, said, "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed." In other words, the power is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving, and thus destroy it as to particular commodities. But it is insisted that adjudged cases in this court establish the doctrine that the power to regulate given to Congress incidentally includes the authority to prohibit the movement of ordinary commodities, and therefore that the subject is not open for discussion. The cases demonstrate the contrary. They rest upon the character of the particular subjects dealt with, and the fact that the scope of governmental authority, state or national, possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate.

Page 247 U. S. at 269 - 70

***

In Caminetti v. United States, 242 U. S. 470, we held that Congress might prohibit the transportation of women in interstate commerce for the purposes of debauchery and kindred purposes... 

 At issue here was a federal ban against goods manufactured by child labor moving in interstate commerce. 247 U.S. at 273. The majority limited Congressional power.

In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.

  247 U.S. at 276.

sch

[8/19/2025: the notes will continue with the Darby case attacking Hammer v. Dagenhart. sch.]