Commerce Clause Research 5-5-2015 #7

[9-7-2025: 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.

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Atlanta Motel (1964) does not even seem all that interested in the "channels of interstate commerce". Caminetti appears almost as an afterthought:

In short, the determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is "commerce which concerns more States than one" and has a real and substantial relation to the national interest. Let us now turn to this facet of the problem.

That the "intercourse" of which the Chief Justice spoke included the movement of persons through more

States than one was settled as early as 1849, in the Passenger Cases, 7 How. 283, where Mr. Justice McLean stated: "That the transportation of passengers is a part of commerce is not now an open question." At 48 U. S. 401. Again, in 1913, Mr. Justice McKenna, speaking for the Court, said:

"Commerce among the States, we have said, consists of intercourse and traffic between their citizens, and includes the transportation of persons and property."

Hoke v. United States, 227 U. S. 308, 227 U. S. 320. And only four years later, in 1917, in Caminetti v. United States, 242 U. S. 470, Mr. Justice Day held for the Court:

"The transportation of passengers in interstate commerce, it 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 interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question."

At 242 U. S. 491. Nor does it make any difference whether the transportation is commercial in character. Id. at 242 U. S. 484-486. In Morgan v. Virginia, 328 U. S. 373 (1946), Mr. Justice Reed observed as to the modern movement of persons among the States:

"The recent changes in transportation brought about by the coming of automobiles [do] not seem of great significance in the problem. People of all races travel today more extensively than in 1878, when this Court first passed upon state regulation of racial segregation in commerce. [It but] emphasizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U. S. 485."

379 U. S. 255 - 56

Chief Justice Rehnquist abridged Atlanta Motel to the formulation of Caminetti in United States v. Lopez, 514 U.S. 549 (1995):

...First, Congress may regulate the use of the channels of interstate commerce. See, e. g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" '[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question'" (quoting Caminetti v. United States, 242 U. S. 470, 491 (1917)))....

 514 U.S. at 558

Transportation was the subject for which Atlanta Motel relied upon Caminetti. Note the quotation above from Atlanta Motel removes the character of the transportation from judicial consideration. Atlanta Motel reduces transportation to mere movement between the States.

Even though, the opinion cites Congressional findings on the effect of segregation upon interstate commerce.

That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act, Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse....

379 U.S. 257

Perhaps Justice Clark felt pangs at upholding a civil rights statute for commercial reasons, or perhaps the Justice had difficulty in recognizing a commercial world where the consumer coming from another state to buy goods in another is being denied access to the other state's commercial goods and services was the same as a state raising a trade barrier to the exportation of those same goods and/or services. The result leaves the morality language feeling like dicta.

Citations to Caminetti bloomed after Atlantic Motel.

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[Continued in Commerce Clause Research 5-5-2015 #8. sch 9/7/2025]