Commerce Clause Research 5-5-2015 #6

[9-1-2025: 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.

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.]

No Supreme Court Justice used "channels of interstate commerce" between 1917 and 1964 as frequently as Justice White between 1904 and 1917. Those coming behind him in its use are Justice Murphy (Overstreet v. North Shore Corp., 318 U.S. 125 (1943); North American Co. v. Securities & Exch. Com., 327 U.S. 686, 90 L.ed 945 (1946); American P. & L. Co v. Securities and E. Com, 329 U.S. 90, 91 L.ed 103 (1946); and Western Union Telegraph Co. v. Lenroot, 323 U.S. 490 (1945) (dissenting)); Justice Van Devanter (Danciger v. Cooley, 248 U.S. 319 (1919); Oliver Iron Mining Co. v. Lord, 262 U.S. 172 (1923); and Shafer v. Farmers Grain Co., 268 U.S. 189 (1925)); Justice Frankfurter in two majority opinions (62 Cases of Jam v. United States, 340 U.S. 593 (1951); and Mitchell v. H. B. Zachry Co., 362 U.S. 310 (1960)) and one concurrence (United States v. Frankfort Distilleries, Inc., 324 U.S. 293 (1945)); Justice Day has two (Hammer v. Dagenhart, 247 U.S. 251 (1918); and United States v. Hill, 248 U.S. 420 (1919)); Justice Sutherland has Bedford Cut Stone Co. v. Stone Cutters' Assn., 274 U.S. 37 (1927), and Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932); Justice Pitney has Corn Products Refining Co. v. Eddy, 249 U.S. 427 (1919), and Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921); Justice Stone has Labor Board v. Fainblatt, 306 U.S. 601 (1939), and Ethyl Gasoline Corp. v. United States, 309 U.S. 436 (1940); Justice Reed used the phrase in United States v. Rock Royal Cooperative, Inc., 307 U.S. 533 (1939), and McLeod v. Threlkeld, 319 U.S. 491 (1943); Justice Minton finishes this particular list with United States v. Alpers, 338 U.S. 680 (1950), and United States v. International Boxing Club, 348 U.S. 236 (1955).

Justice Douglas uses the phrase in Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943), and in his dissent for Alstate Construction v. Durkin, 345 U.S. 13 (1953).

Chief Justice White wrote his last opinion containing "channels of interstate commerce" in 1919: United States v. Ferger, 250 U.S. 199 (1919).

[Changing up the format from my notes since they are a bit hard to read, as well as tedious to write! sch 9/1/2025.]

The Supreme Court Justices using "channels of interstate commerce" only in one opinion, in a roughly chronological order (1920–1964):

1. Justice McKenna: United States v. United States Steel Corp., 251 U.S. 417 (1920)
2. Justice Clarke: American Column & Lumber Co. v. United States, 257 U.S. 377 (1921)
3. Justice McReynolds: United States v. American Linseed Oil Co., 262 U.S. 371 (1923)
4. Chief Justice Hughes: United States v. Borden Co., 308 U.S. 188 (1939)
5. Justice Black: Labor Board v. Bradford Dyeing Assn., 310 U.S. 318 (1940)
6. Justice Jackson: H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949)
7. Justice Burton: Roland Electrical Co. v. Walling, 326 U.S. 657 (1946)
8. Justice Rutledge: United States v. Sheridan, 329 U.S. 379 (1946)
9. Justice Harlan: Eli Lilly & Co. v. Sav-on-Drugs, Inc., 366 U.S. 276 (1961) (concurring)
10. Justice Stewart: United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964)

That Justices Holmes, Brandeis, or Cardozo do not appear in these lists may be of interest. Likewise, the shortage of Chief Justices.

I estimate "channels of interstate commerce" starts at a high level in the early Twenties until the World War II era, and then rises a little afterward. Here a graph would find a use. Also, as I wrote earlier, I lack any historical or biographical resources for explicating these raw facts.

sch

[9/1/2025: Prisons do not like prisoners having access to information. However, I am no longer in prison, and have access to the internet. It has made case citations a bit easier and quicker. I have also access to the information on the Justices, and have linked to biographical information.

Typing this, I wondered why I did not take the time to tabulate this information. Other than, I was never very good with spreadsheets. Today, I started a spreadsheet. And I finished. Quite burned out now!

sch.]