Commerce Clause Research 5-5-2015 #4

   [8-31-2025: 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.

Now, continuing with the Darby case attacking Hammer v. Dagenhart started in Commerce Clause Research 5-5-2015 #3.

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 Darby v. United States followed Justice Holmes' dissent in Hammer v. Dagenhart. Justice Stone begins how the latter case

...In that case, it was held by a bare majority of the Court, over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved, that Congress was without power to exclude the products of child labor from interstate commerce. The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution.

Page 312 U. S. at 115 - 16, 85 L.ed 609, 618

See also United States v. Kahriger, 345 U.S. 22 (1953) fn. 6.

The departure from this line of decisions in Hammer v. Dagenhart, 247 U. S. 251, was reversed in United States v. Darby, 312 U. S. 100, 312 U. S. 115-124, where we said:

"Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause."

"The power of Congress over interstate commerce . . . extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce."

312 U.S. at 312 U. S. 118.

I find in the following passage a glimpse of Caminetti and the white slavery mania underlying the Mann Act. 

 ...But if there is any matter upon which civilized countries have agreed -- far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused -- it is the evil of premature and excessive child labor. I should have thought that, if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States.

247 U. S. 281(Holmes, dissenting)

I also find noteworthy Justice McKenna, author of the Caminetti dissent, and Hoke v. United States, 227 U.S. 308, 57 L.ed. 523, 37 S.Ct. 294 (1913), the first Mann Act case, joined Justice Holmes' dissent in Hammer. I think this is an oblique criticism of Caminetti - especially when paired with this passage:

The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States, which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole. If, as has been the case within the memory of men still living, a State should take a different view of the propriety of sustaining a lottery from that which generally prevails, I cannot believe that the fact would require a different decision from that reached in Champion v. Ames. Yet, in that case, it would be said with quite as much force as in this that Congress was attempting to intermeddle with the State's domestic affairs. The national welfare, as understood by Congress, may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.

247 U. S. at 281 (Holmes's dissent)

Justice Holmes provided a bit more commentary of Caminetti than did Justice Day in his majority opinion. 

...It does not matter whether the supposed evil precedes or follows the transportation. It is enough that, in the opinion of Congress, the transportation encourages the evil. I may add that, in the cases on the so-called White Slave Act, it was established that the means adopted by Congress as convenient to the exercise of its power might have the character of police regulations. Hoke v. United States, 227 U. S. 308, 227 U. S. 323. Caminetti v. United States, 242 U. S. 470, 242 U. S. 492. In Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 242 U. S. 328, Leisy v. Hardin, 135 U. S. 100, 135 U. S. 108, is quoted with seeming approval to the effect that

"a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State unless placed there by congressional action. I see no reason for that proposition not applying here."

247 U. S. at 279 - 80 

Justice Holmes apparently accepts the concept of interstate movement as transportation as interstate commerce. Holmes writes of commerce as goods shipped between the states. He advocates no morality. Over interstate business transactions, he finds the Constitution gave the power to Congress.

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[Continued in Commerce Clause Research 5-5-2015 #5. sch 8/31/2025]