Just to report a bit further on my reading of William Crosskey: he presents overwhelming evidence that "among the several states," a key phrase in the Constitution's Commerce Clause, meant "among the people of the several states" and that an exclusively interstate meaning was almost certainly not intended. For example, he provides quotations from literate people at the time who referred to the duty of government to promote peace or tranquility or happiness "among the several states." The contexts of these quotations indicate that these could not have been meant to exclude intrastate peace or tranquility or happiness. In fact, in one example a delegate to the Constitutional Convention lamented that although Congress in the Confederation period "was intended to be a body to preserve peace among the states," it was not authorized to suppress Shays' Rebellion, an entirely intrastate affair.
Moreover, Crosskey provides countless quotations showing that the word "state" itself more often than not meant the people of a state. This was apparently the default meaning; other senses of the word seemed to require specification. Thus "among the several states" would have meant "among the people of the several states." This, again, is inconsistent with a strictly interstate reading of the Commerce Clause.
The upshot is that the Commerce Clause was not likely to have been intended as a limit on the power of Congress to regulate commerce. It's unfortunate, but the facts are the facts. Hiding from them does us no good.
Saturday, May 09, 2009
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34 comments:
All the more reason to dump the useless Constitution and form a new confederation, or confederations, rather than continue the now tyrannical federal "government."
Frankly, I'd rather have the Articles of Confederation back.
So would I. But I don't see that happening. What it means, in my view, is that we have to teach people the virtue of nonaggression -- for everyone, even those who call themselves "the state." We shouldn't peddling fairy tales.
Sheldon, I have some disagreements with your assertions.
First, I firmly believe it is not at all an "established fact" as you imply. It is *arguable*, sure--but in my view, it's a ridiculous argument; Crosskey's book is tendentious.
I do completely agree we should recognize facts, even if we disagree, and then deal with that. For example, it is a fact that it is constitutional for the feds to tax income. It is a fact that slavery used to be legal and constitutional.
Further, even if Crosskey were right--so what? It does not prove that there was no constitutional right to secede, which is what the centralist, pro-war, pro-Union, pro-federal-judge, pro-14th-Amendment naive-centralist-statist libertarians want to argue, with similar reasoning.
And so what if the Constitution was meant to give Congress these powers. Well, it also condoned slavery, and gives the feds the power to tax income. The fact of positive law has no relevance as to its justification.
Stephan
Incidentally, as Crosskey notes, we know from Article III, the one about the judiciary, that the framers were perfectly capable of writing "between Citizens of different States" when they wished to. This sheds additional light.
Stephan, "ridiculous"? And your reason for this conclusion is ...? Tendentiousness is an irrelevant charge. You're tendentious too. Say something about his voluminous evidence, will you?
I haven't said anything about secession yet. But I might, sooner or later. At this point, as a legal (though not moral) matter, it doesn't look good. But that is highly tentative on my part.
"And so what if the Constitution was meant to give Congress these powers. Well, it also condoned slavery, and gives the feds the power to tax income. The fact of positive law has no relevance as to its justification."Did I say a general power to regulate commerce is justified because it's in the Constitution? Where did I say or even hint at that? I (and the Supreme Court) think the income tax is constitutional without the Amendment XVI, but that doesn't justify income taxation, as far as I am concerned.
Please stick to what I am saying. The "so what?" is this: it is important to understand what the framers intended so that when invoke the Constitution, we know what we are talking about.
Sheldon, I would also add that it is both reasonable, and libertarian, to construe any grant of powers in the Constitution strictly, and to construe any ambiguity against the federal government. Since the states were jealous of their powers and were grudgingly making only a limited grant of powers to the feds--and only those that were expressly enumerated--then if the power is not clearly and expressly enumerated, the feds just don't have that power.
In other words, if the document is ambiguous, or unclear, you construe it against a grant of power. This is the same as having a presumption in favor of rights (as Randy Barnett favors), since in the Constitution the primary means of preventing the feds from violating rights was the use of the enumerated powers scheme: if there is no power granted, the feds have no power to violate a right in the first place. So a finding of no-power is the same as a finding of a right--a limit on the feds' ability to violate rights.
I think it is beyond cavil that much of the Constitution is ambiguous and murky--including the exact meaning of the Commerce Clause. It is not an established fact at all that it is to be construed the way Crosskey tendentiously argues. At most, it is arguable. But in any event, it is not clear that Congress has the powers centralist proponents want it to. Therefore, there is not an express delegation of power in this respect.
It's the same, by the way, with the privileges or immunities clause of the 14th amendment. They could have said "rights" if they had wanted. They could have said "fundamental rights" or "the Bill of Right". (If they had, they then could have left out the "due process" language since it would then have been redundant; and if they had, they would not, I suppose, have needed subsequent amendments such as the 15th and women's suffrage--after all, doesn't equal protection prevent that, if the 14th was meant so broadly?). But they didn't. Some arguments can be come up with saying that "privileges or immunities" "really means" "rights"--and other arguments come out on the other side. But since this works as a grant of power to the central state, and since it's ambiguous--the grant of power fails.
Here's all I will say tonight about Stephan's last comment: May I dismiss it because it is clearly tendentious?
"Since the states were jealous of their powers and were grudgingly making only a limited grant of powers to the feds--and only those that were expressly enumerated--then if the power is not clearly and expressly enumerated, the feds just don't have that power." (My emphasis.)
Wrong. See this.
Sheldon,
The more disheartened I become with the Constitution and with libertarians' ridiculous affection for it or minarchy, or the early American "experiment," the less and less I care about constitutional arguments, since they end up miring us in positivist debate.
The Constitution was a coup, and a disastrous failure, and very unlibertarian. It has given us the horrible state we have now.
My main reply to your initial post is to dispute that Crosskey's interpretations are some uncontroversial, established fact.
If and to the extent it is argued that it was "the people" and not the states themselves that were parties to the Constitution--I disagree. The best interpretation in my view is that the 13 states were sovereign states under international law and formed by treaty or compact a new, sui-generis quasi-state having its own legal personality and limited in its powers and regulated in its relation with the states by the Constitution, its charter.
The Jaffa-ite argument that it was all the people of the country coming together as a whole to form a new super-state with the states merely as provincial departments is in my view ridiculous and tendentious.
Incidentally, you are wrong--my arguments are not tendentious at all. I am not enamored of the Constitution; I am not under the illusion that it's libertarian; and I do not corrupt my libertarian principles for the sake of tactical or activist concerns, so I do not bend my views or lie about them to try to twist the Constitution to be more like I want it to be. I am opposed to the whole thing. I think the 14th amendment, and several others, were mistakes and unlibertarian--even if you construe the 14th as narrowly as I would. But I do not deny that they exist. If the 14th amendment really did mean to incorporate a broad swath of rights, I would have no reluctance whatsoever to admit this. I would simply then oppose it.
The Constitution is incoherent, self-contradictory, vague and incomplete. It is impossible to give an objective interpretation to all its provisions, or to fit it into some coherent, organic theory, since it's merely positive legislation just like any other statute, that has no organic plasma of justice it has to adhere to. There is no reason its parts have to be consistent--and they are not.
But when I view it as a lawyer, and as someone trying to read it and give it the most reasonable interpretation, I really do not think that it gives the feds the power to stop secession. I really do not think the 14th amendment is as broad as libertarian centralists want it to be. They are the tendentious ones since they are arguing like lawyers--trying to push it in one direction to suit their cause. I think the Constitution is a disaster and empowers an evil state to wantonly violate rights, so I am not in thrall to the project of thinking strategically and twisting and distorting the thing in an attempt to push a political football one way or the other. In this I agree with your comment that we have to recognize facts--even if they are bad for us.
BTW my own view of the commerce clause is that it was basically meant to give Congress power to prevent states from choking interstate commerce--in effect, to ensure an internal free market. So it is a limited grant of power--limited by the states' right to secede.
"I haven't said anything about secession yet. But I might, sooner or later. At this point, as a legal (though not moral) matter, it doesn't look good. But that is highly tentative on my part."
I'd be curious to see your thoughts on this.
"Did I say a general power to regulate commerce is justified because it's in the Constitution? Where did I say or even hint at that?"
Hmm, did I imply you said this? I didn't think I had. I was just disagreeing with this "people of the state" construction, esp. as it ties into the anti-secession views of the pro-centralists; and I disagree with you that Crosskey's construction is unchallengeable fact.
"I (and the Supreme Court) think the income tax is constitutional without the Amendment XVI, but that doesn't justify income taxation, as far as I am concerned."
Right--I think you and I are in basic agreement here.
"The "so what?" is this: it is important to understand what the framers intended so that when invoke the Constitution, we know what we are talking about."
Of course--except, strictly speaking, the framers' intent is irrelevant--rather, relevant only insofar as this is evidence of the original public meaning (the original understanding) of the document at the time of ratification.
"Here's all I will say tonight about Stephan's last comment: May I dismiss it because it is clearly tendentious?"
Sheldon: what is tendentious about my comment? Why is it biased? I have no axe to grind. If I had any hope that the Constitution could be reformed or used to support liberty, I suppose I might be tempted to put forward a lawyer's argument trying to argue that the Constitution "does" mean what I personally want it to mean. But this is one reason I am wary of the perils of activism.
In any event, my point was not that Crosskey is necessarily wrong because he's got a bias and an agenda--it's that this helps to inform the reader and to realize that his conclusions are not "fact"--they are just one argument of many.
"'Since the states were jealous of their powers and were grudgingly making only a limited grant of powers to the feds--and only those that were expressly enumerated--then if the power is not clearly and expressly enumerated, the feds just don't have that power.'
"Wrong. See this."
Sheldon, I don't think the wording of the tenth amendment contradicts my proposed understanding of the nature of the Constitution. The Constitution was ratified 2 years before this amendment. And it affirms that the powers have to be delegated. Since they have to be done by means of the written constitution, they have to be written in the language of the Constitution--expressed in written language. Surely you do not disagree with this? (BTW the writing of law professor Thomas McAffee is very illuminating on these matters, e.g. regarding the limited and enumerated powers scheme of the Constitution.)
One other point about the tenth amendment. As noted, it came 2 years after the Constitution, so it cannot retroactively change the original nature of the Constitution as one of enumerated powers.
Now, I suppose you could argue that by leaving the word "expressly" out of the 10th, it changed how the Constitution should be construed going forward. That is, going forward, the feds had not only expressly delegated and enumerated powers, but ... implied and not-clearly-granted ones. But that would mean that the tenth amendment works as a grant of power to the feds--surely a ridiculous construction to give to that amendment! IF you want to talk about original intent--do you really think any of the framers would have said the tenth amendment expands federal power? Of course not.
The dissection of the commerce clause by William Rawle in his 1825 A View of the Constitution may be of interest too--see pp. 81-83.
Stephan, the "power to lay and collect taxes ... to ... provide for the ... general welfare" hardly sounds limited. The list of powers that follow is not an enumerated and exhaustive definition of that general grant of power. The punctuation and structure do not support that view. What we have is list of powers, the first of which is wide open, not a preamble followed by specifics.
If the eschewing of Article II of the Articles and the later addition of a radically different version has no significance to you, then I don't know what your theory of interpretation could possibly be.
Neither Crosskey nor I said his story is absolutely established fact. He ofter qualified his sentences to indicate just the opposite. But he presents voluminous linguistic and other evidence, about which you say nothing except that it's tendentious. Marshall's quote in Rawle is worth knowing about, but it hardly counters all the examples to the contrary Crosskey provided. Despite what Marshall says, Crosskey establishes that "among the (several) states" was often used to mean among the people of the states, without any exclusively interstate implication. One Marshall quote can hardly overturn that.
Re your final point, Crosskey offers persuasive evidence that virtually no one -- neither the Federalists nor Antifederalists -- thought Amendment X changed the nature of the Constitution. On the contrary, it was taken as a reaffirmation.
"BTW my own view of the commerce clause is that it was basically meant to give Congress power to prevent states from choking interstate commerce--in effect, to ensure an internal free market. So it is a limited grant of power--limited by the states' right to secede."Such is the danger of a priori history. Calvin Johnson, after closely examining the debates about the Commerce Clause, shows that trade barriers between states was not what was on the framers' and ratifiers' minds. What was on their minds was mercantilism, protectionism vis-a-vis foreign nations. Hamilton openly argued in the Federalist that tariffs against other nations could be far higher with a strong central government. See this.
Re Shays' rebellion and the like -- isn't the federal power to suppress such things supposed to come from the power to "suppress Insurrections" and secure the states "against domestic Violence," and so not necessarily from the interstate commerce clause?
Roderick, I might have not have made myself clear. Crosskey was not saying the Commerce Clause is the source of the power to put down insurrections within states. He was simply saying that references to the federal government's duty to safeguard peace and tranquility "among the states" was not exclusive of intrastate insurrection. He was analogizing to the phrase in the Commerce Clause to show that it most probably did not mean interstate commerce only. He made the point in the context of discussing the phrase "among the (several) states."
By the way, everything Crosskey says was said first by the Antifederalists. The difference is that while the Antifederalists (properly) feared unlimited national power, Crosskey welcomed it.
"if the document is ambiguous, or unclear, you construe it against a grant of power."That assumes the document is ambiguous. Crosskey goes to great lengths to show that it was not ambiguous to the people of late-eighteenth-century America. It was ambiguous to the Antifederalists. That's for sure. What if a clause in ambiguous only because we haven't done the empirical research about its meaning? For instance, what if that research would reveal that back then "commerce" meant business in general.
Second, I am all for construing things against the grant of power. But where are judges instructed by the Constitution to do that?
Sheldon:
"Such is the danger of a priori history. Calvin Johnson, after closely examining the debates about the Commerce Clause, shows that trade barriers between states was not what was on the framers' and ratifiers' minds. What was on their minds was mercantilism, protectionism vis-a-vis foreign nations. Hamilton openly argued in the Federalist that tariffs against other nations could be far higher with a strong central government."
Sure... you may be right about this. It's probably a bit wishful thinking to think the IC clause sets up an internal free market and nothing else.
""if the document is ambiguous, or unclear, you construe it against a grant of power."That assumes the document is ambiguous. Crosskey goes to great lengths to show that it was not ambiguous to the people of late-eighteenth-century America. It was ambiguous to the Antifederalists. That's for sure. What if a clause in ambiguous only because we haven't done the empirical research about its meaning? For instance, what if that research would reveal that back then "commerce" meant business in general."
Like you, I'm happy to go where the evidence and sound reasoning leads--I am under no illusions the Constitution was libertarian in the slightest. And I do agree that the way the Constitution was written has as a practical matter--and not unpredictably--led to the feds basically assuming plenary and general legislative power. That said, I do not believe the original understanding of the Constitution at the time of its ratification would have supported the interpretation that it did grant plenary legislative power to Congress--whether via the IC clause, the necessary and proper clause, or any kind of "inherent" sovereignty power.
In such cases since I believe original understanding is the most sensible and most honest interpretative method, I often simply do a thought experiment--just imagine what would have been the reaction of the framers and intelligent laymen at the time, had you asked them if the language being ratified meant what is now being proposed. For example, if you had asked in 1789 whether the Constitution establishes a central, national state of plenary, general legislative powers--pointing to whatever text you wish--it seems quite clear that you'd receive resounding NO's. IF you had asked whether a state choosing to leave the union later could be militarily attacked (again--point to any clause you want), it seems again clear the answer would be not.
As for the Fourteenth Amendment, nowadays we have modern libertarians arguing that it incorporates fundamental rights, the Bill of Rights, rights to engage in sodomy, etc. Imagine asking the Framers and ratifiers of that Amendment in the 1860s if the language meant federal judges could outlaw state laws prohibiting homosexual sodomy. To ask is to answer.
Now while such considerations are not dispositive--it is possible for people to simply be incorrect about the consequences of the language they do approve--I think they can help inform a realistic and honest inquiry as to what the language really means, as opposed to what one wants it to mean.
"Second, I am all for construing things against the grant of power. But where are judges instructed by the Constitution to do that?"
What judges? I am very sympathetic to the nullification ideas of Jefferson and Madison, and think states can nullify federal laws, including state judges. So I think they would tend to construe the federal Constitution like this quite naturally.
As for federal judges--again, this is another area of ambiguity. It is not even clear that there is judicial review, though I think the tripartite division of power and the equal obligation of each branch to abide by the Constitution does imply at least a "veto" on the part of the federal judiciary, on any federal law they believe is unconstitutional. So one of their jobs is to refuse to enforce an unconstitutional law. Given the federal scheme of enumerated powers, it's clear (in my view) that a federal law that Congress is not authorized to enact is unconstitutional. This means as a practical matter that a judge as a preliminary step has to first look for an enumerated power in the Constitution authorizing the federal statute. But the mere act of looking for this authority, for this power, is tantamount to construing things against a grant of power. In other words, it presupposes that there IS no authority to enact the law UNLESS one can find authority in the Constitution. This is a unique way of examining the validity of law by a "sovereign," since all other sovereign states in the world are held to have general or plenary legislative and police power. But not the feds. So merely by trying to identify an authorizing provision in the Constitution, one is in effect adopting an implicit rule against a grant of power. The presumption is that there is not a grant of power--unless one an find one.
I think it's almost impossible to argue with a straight face that the IC or other clauses were actually meant to grant Congress plenary legislative power. To argue this is in effect to endorse the reasoning of Wickard v. Filburn, which is one of the worst reasoned cases in Supreme Court jurisprudence.
"In such cases since I believe original understanding is the most sensible and most honest interpretative method...."Whose original understanding? It is certainly true that many, including judges after 1789, gave the Constitution more of an Antifederalist reading than the authors intended. As Jeffrey Rogers Hummel wrote, "To oversimplify only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted." Given that that different people had different understandings, I don't see how that is a guide to interpretation. A sounder guide would be to determine what the words of the text typically meant back then. Crosskey did that. But of course we may not like what we find. That's the danger of playing the constitution game.
Re secession, it is not clear that people would have been surprised by what happened in 1861. The Antifederalists' statements clearly indicate that they understood the Constitution to be creating not a confederation, but a consolidated nation.
By the way, the full title of the Articles of Confederation is: Articles of Confederation and Perpetual Union. This doesn't help the pro-secessionist case. I'm beginning to think there is no legal authority to secede. Moral authority is a different matter, of course.
Sheldon:
"Given that that different people had different understandings, I don't see how that is a guide to interpretation. A sounder guide would be to determine what the words of the text typically meant back then. Crosskey did that. But of course we may not like what we find. That's the danger of playing the constitution game."
I agree. Of course, "original understanding" is just the view that asks what the words meant at the time of ratification. The danger of the constitutional game is that it's already statist. We have lost already.
"Re secession, it is not clear that people would have been surprised by what happened in 1861. The Antifederalists' statements clearly indicate that they understood the Constitution to be creating not a confederation, but a consolidated nation."
I disagree with this. The use of words like "perpetual" etc. does not suffice to show that there was no right to secede (or any federal power to stop it). I commented on this here: http://www.facebook.com/home.php?ref=home#/note.php?note_id=85930966583
From my comments here:
Of course, there is a right to secede. The CSA had a right to secede and to revolt, just as did the USA in seceding from Britain.
The states of the US obviously have a constitutional right to secede, since the federal government is merely an agent of limited powers created by compact of the original 13 state-parties, and that compact (a) never denied the right of states to leave the union; (b) the states never gave up this right; and (c) the feds were never granted the power or authority to stop the states from leaving. It is quite obvious that there is a constitutional right to secede.
As Kevin Gutzman discusses in ch. 3 of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (as well as in his 2004 Review of Politics article “Edmund Randolph and Virginia Constitutionalism,” Virginia (in addition to two other states) retained the right to reclaim the powers they were delegating to the Federal Government (that is, to secede) in case those rights were perverted to their oppression (which has to be a matter that is for them alone to decide). See ch. 3 of Virginia’s American Revolution and the aforementioned article. In fact, the two leading Federalist spokesmen in the ratification convention told the convention that they were to be “as one of thirteen parties to a compact,” that the Federal Government would have only the powers it was “expressly delegated,” and that they could reclaim the powers they were granting it (that is, secede) if those powers were perverted to their (that is, Virginians’) oppression. (Obviously, only Virginians could be the judge of that.)
Further, the Supreme Court has long had what it calls the Equal Footing Doctrine (2), which holds, after the manner of Virginia’s Northwest Cession of 1781, that all states have the same rights. If Virginia (and NY and RI) reserved the right to secede, then all states have that right. This doctrine requires all states to be treated alike, and reflects the universal understanding of the ratifiers, that means any state can secede if it wants to.
Incidentally, the two VA Ratification Convention delegates mentioned above were the governor, Edmund Randolph (also a prominent Framer) and George Nicholas, who often spoke for Madison. They were two of the five members (along with John Marshall and James Madison) of the all-Federalist committee to draft the instrument of ratification.
(For more on this, see the two above-noted works by Gutzman, plus his Gutzman’s Mr. Franck, Meet Mr. Randolph and Neocons vs. the Real Constitution.)
Now, of course, it could be that the president, in the mode of Lincoln, would ignore Texas’s right. That’s a separate issue.
"By the way, the full title of the Articles of Confederation is: Articles of Confederation and Perpetual Union. This doesn't help the pro-secessionist case."
It doesn't hurt it at all, Sheldon. This has been explained numerous times.
"I'm beginning to think there is no legal authority to secede. Moral authority is a different matter, of course."
In a way, this is all that really matters; the Constitution is incoherent, and so in the end it ends up being just political gamesmanship. Let's just cut to the chase. What do we favor, morally? Well, our libertarianism informs that. Yet it somehow informs some of our colleagues that it's good for this criminal mafia to have the "authority" to "review" lower state laws; it's good to increasingly centralize state power. Amazing.
"It's probably a bit wishful thinking to think the IC clause sets up an internal free market and nothing else."Please, no question-begging allowed. You can't call it the "IC clause" until you demonstrate that interstate commerce is all that was meant.
Sheldon, ""It's probably a bit wishful thinking to think the IC clause sets up an internal free market and nothing else."Please, no question-begging allowed. You can't call it the "IC clause" until you demonstrate that..."
Okay, fair point. That was not meant to be question-begging; it's just a common way to refer to it. Anwyay,this all makes me feel unclean--arguing what the positivist, illegal, immoral, statist, unlibertarian, disastrous document "really means". Would we really be expending so much energy handrwringing and debating over what the mafia's "basic document" "really means"? The enemies are those who seek to *use* this as an excuse to justify institutionalized aggression against innocent people--as centralist (statist, non-) libertarians do.
You're right about nonaggression, Sheldon. In my view, the non-aggression principle is the most important weapon we have to support liberty and resist statism.
"The states of the US obviously have a constitutional right to secede, since the federal government is merely an agent of limited powers created by compact of the original 13 state-parties...."More question-begging, which I said is not allowed here. :)
What is in dispute here is whether the national government is "an agent of limited powers." You can't use this as a premise. C'mon, Stephan. You know better.
Your final paragraph about morality appears to withdraw the earlier portions of the comment.
I think this subject is worth being clear on because many libertarians (not to mention conservatives) invoke the Constitution as a trump. (Have you listened to Ron Paul?) If we know better, we should respect our listeners enough to speak the truth.
Stephan, do tell what the phrase "perpetual union" meant in the Articles of Confederation.
Sheldon:
""The states of the US obviously have a constitutional right to secede, since the federal government is merely an agent of limited powers created by compact of the original 13 state-parties...."More question-begging, which I said is not allowed here. :)
"What is in dispute here is whether the national government is "an agent of limited powers." You can't use this as a premise. C'mon, Stephan. You know better."
Well, I was quoting from a previous post. But I do think this interpration makes sense, in any events.
Is the federal gov't unlimited? No; no state is unlimited.
Is it as limited as utopians and Randians say it is ? Well, as a factual matter, it's not--the constitution has done nothing but help to enshrine the state's legitimacy and thus to get away with more than it otherwise could have (like democracy). BUt it was not even intended to set up some minarchy. However, it certainly was meant to impose more limits than are currently respecte.
"Your final paragraph about morality appears to withdraw the earlier portions of the comment."
No; there are just different levels of analysis, different perspectives. Ultimately, we libertarians are radicals, not "constitutionalists."
"I think this subject is worth being clear on because many libertarians (not to mention conservatives) invoke the Constitution as a trump."
I do not. I simply resist statists and centralists dishonestly using pro-state arguments and pretending they are "objective" when they are really just tendentiously using them to forward their statist cause.
Sheldon, "perpetual" meant the aspiration of the parties, sort of like when you get married (but still have the right to divorce). I don't think it meant "we hereby grant you the power to kill 500000 of us if we want to leave."
My reading of the Commerce Clause focused on the word "regulation," which I understood to mean "make regular," as in establishing units of measure and the like, not (as it does today) "micromanage to achieve specific effects."
What sayest those more knowledgeable than I about this? Is it relevant? Does it shed light on what may be done "among the several states" vis-a-vis commerce?
Roger Pilon has made this argument for years. But I've never seen proof. My own reading does not support this. Calvin Johnson says regulate means regulate, as in control. Crosskey has a chapter on the word, which I will write about when I've read it.
Hmm. Sheldon, you are making me think. It coudl well be that we libertarians try to put a libertarian spin on these terms--either as an advocate, or as wishful thinking; neither of which is very honest. I think a lot of the Constitution is perfectly ambiguous. This is part of the problem. It's a good reason to oppose the whole thing. I suppose if you are not an anarchist, you are locked into becoming a dishonest advocate. If you reject the entire thing, you have no reason to be tendentious.
So far: Crosskey says regulate was used as a synonym for "govern." Nothing controversial there.
Anymore I cringe when I see libertarians defending the constitution (thinks to Sheldon's good influence). We should defend liberty, not the constitution.
Sheldon, you may find of interest the comments in this post: Live Blog--Hologram of Liberty, e.g. this excerpt:
"While it is clear that the Constitution has failed to limit the central government, Mr. Royce raises some very uncomfortable of questions: What if the Constitution did not restrain the State because it was, in fact, designed to increase the power of the State? What if the Constitution has not "failed" to protect liberty, but has accomplished exactly what the authors wanted it to do?
"I used to believe [the Constitution was meant to limit the power of the central state] until I read Hans Hermann Hoppe's essay On the Impossibility of Limited Government. Prof. Hoppe's argument convinced me that a written Constitution could never limit the State. Since the State is the ultimate judge of conflict including conflicts involving itself, it will almost always rule in its own favor. Hence, a Constitution designed to limit the State is destined to fail; the State will continue to grow because ultimately it is the judge of its own powers.
"... If liberty were first and foremost on their [the Founders'] minds, why pass into law a document whose flaws were clear to everyone?
Royce answers that the Constitution "was never meant to enshrine State autonomy or hold your individual rights over federal interests. And finally, it was never meant to stunt federal growth."... If this is true, then the only solution to advance is to reject our (second) Founders' Constitution."
Also: in email correspondence about this issue with constitutional expert law professor Thomas McAffee, he said the following (and gave me permission to post this):
"I confess to a certain ambivalence about the commerce clause and the Tenth Amendment. I co-authored a book with Jay Bybee (lately of "torture" fame) and Chris Bryant on the Ninth and Tenth Amendments -- Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments (Praeger 2006). Unsuprisingly I wrote the chapters on the Ninth Amendment and Jay and Chris wrote those on the Tenth (Jay's work being completed before reporting to the Office of Legal Counsel). Richman's construction of the commerce clause seems quite plausible to me and appears generally consistent with Gibbons. Though generally sympathetic to originalist analysis, I tend to think that we're just not going back to older constructions--though I'm sympathetic to efforts by William Van Alstyne and others to articulate some genuine limits to national power in our federal system. Trying to return to "strict construction" of federal power just seems unrealistic to me--and is something that even modern proponents of state power regularly reject as a practical matter. In our book, Chris Bryant includes a bibliographic essay that summarizes modern federalism scholarship; you may find it somewhat helpful.
"David Currie's book on The Constitution in the Supreme Court: The Second Century, 1888-1986 (1990), is useful. I tend to trust Currie's work. And I've always liked "Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, " 1987 Duke L.J. 769 (1987) by Van Alstyne. But I ... think we're largely "stuck" in a system that does not take the idea of enumerated powers very seriously.
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