tag:blogger.com,1999:blog-20077444.post4866969823391366648..comments2024-03-26T04:21:43.535-05:00Comments on Free Association: Constitutional Question of the DaySheldon Richmanhttp://www.blogger.com/profile/15672237234580563637noreply@blogger.comBlogger29125tag:blogger.com,1999:blog-20077444.post-47326660170163056882009-05-08T06:44:00.000-05:002009-05-08T06:44:00.000-05:00Ok, we'll agree to disagree.Ok, we'll agree to disagree.martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-44219973154547161602009-05-07T18:09:00.000-05:002009-05-07T18:09:00.000-05:00We are going in circles now. I think my position i...We are going in circles now. I think my position is clear above. Unless some new point arises, I'll end by saying that if we were judging the phrase without knowing it came from the Constitution and without knowing U.S. legal history, I doubt anyone would give it an exclusively interstate reading. There is nothing compelling about that interpretation. So far this has been an analysis of the wording alone. It is worth noting in this connection, that the major framers favored consolidated power. They lamented the lack of a uniform national commercial policy under the Confederation. Moreover, Madison wanted Congress to be able to veto state laws. See also the separate post about the 10th Amendment vs. Article II of the Articles of Confederation.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-7503125227217790122009-05-07T17:11:00.000-05:002009-05-07T17:11:00.000-05:00I don't see why "rivalry among the people of the s...<I>I don't see why "rivalry among the people of the several states" rules out intrastate rivalry</I>.<br /><br />If it's worded like that, it doesn't. But I think 'rivalry among the states' means 'rivalry among the populations of the states' which does rule out intrastate rivalry.martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-30676023327290624872009-05-07T16:35:00.000-05:002009-05-07T16:35:00.000-05:00I don't see why "rivalry among the people of the s...I don't see why "rivalry among the people of the several states" rules out intrastate rivalry.<br /><br />At the very least we have a vague phrase that in no way compels an interstate interpretation.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-86191942833358580132009-05-07T16:30:00.000-05:002009-05-07T16:30:00.000-05:00I agree. But it could also mean rivalry at the lev...I agree. But it could also mean rivalry at the level of people in the states, I think. (Like when you would say 'rivalry among neighbourhoods'.) In that case it would mean that Texans rival Californians, but it would not mean Texans rival other Texans. And that does carry over to 'commerce among the states'.martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-75997287188192223512009-05-07T15:43:00.000-05:002009-05-07T15:43:00.000-05:00"Rivalry among the several states" means something..."Rivalry among the several states" means something, though you'd want to know what the rivalry was over. The state governments could be contending for something, say, increased federal money. But that doesn't carry over to "commerce among the several states," given that states do not engage in commerce in the U.S.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-63594875807628856532009-05-07T15:34:00.000-05:002009-05-07T15:34:00.000-05:00We wouldn't say itThat's what I mean. On the other...<I>We wouldn't say it</I>That's what I mean. On the other hand would you say 'rivalry among (several) states'?martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-51931119591905090182009-05-07T12:59:00.000-05:002009-05-07T12:59:00.000-05:00We wouldn't say it, but "swine flu among the sever...We wouldn't say it, but "swine flu among the several states" could only means among the people of the states. It does not exclude swine flu within states.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-72810181310174645192009-05-07T12:00:00.000-05:002009-05-07T12:00:00.000-05:00I thought about this for a while:
It sounds more...I thought about this for a while: <br /><br /><I>It sounds more like a general condition: commerce among the people of the states.</I>It almost had me convinced, but I have a problem with other applications. E.g. 'swine flu among the states'. Obviously states in the corporate sense cannot contract swine flu, but still I have a hard time seeing it as 'swine flu among the people of the states'. To me it seems this phrase can only refer to actual states (in the corporate sense) suffering from swine flu, and thus as absurd.<br /><br />(Maybe this shows a lack of understanding of the English language on my part, I don't know.)martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-12369235787858968222009-05-07T09:22:00.000-05:002009-05-07T09:22:00.000-05:00Martin, it could mean that, although the use of "a...Martin, it <I>could</I> mean that, although the use of "among" for two parties is unidiomatic. However, it also could mean, without stretching the language, all commerce within the United States. That's my point. We can't tell those who interpret it that way that they are wrong. <br /><br />But I think we can go further. It strikes me that the interstate interpretation is an imposition, whereas the other reading is not. The framers were capable of saying "interstate" or of specifically excluding intrastate commerce.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-1678814237740022492009-05-07T09:14:00.000-05:002009-05-07T09:14:00.000-05:00Hmmm, somehow my newlines get lost sometime...Hmmm, somehow my newlines get lost sometime...martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-26439075015611364002009-05-07T09:12:00.000-05:002009-05-07T09:12:00.000-05:00But we can't interpret it to refer to states', in ...<I>But we can't interpret it to refer to states', in the corporate sense, engaging in commerce because that wouldn't have been an issue. Why would they have meant that?</I>Don't get me wrong, I don't think that's what they meant, I think it's a metaphor. I think a state engaging in commerce is a metaphor for people of that state engaging in commerce with other people outside that state, wether you use definition 3 or definition 6.<br /><br />Let me put it another way: 'commerce between Texas and Arizona', usually means 'people from Texas engaging in commerce with people from Arizona'. Likewise IMO 'commerce between/among Texas, Arizona and California' means 'people from Texas engaging in commerce with people from Arizona and California, and people from Arizona engaging in commerce with people from California', in short: interstate commerce involving Texas, Arizona and California. Likewise I think 'commerce among the states' means interstate commerce involving all states (of the USA).martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-26446094037930195912009-05-07T08:02:00.000-05:002009-05-07T08:02:00.000-05:00Correction:
Above I wrote: "It sounds more like a...Correction:<br /><br />Above I wrote: "It sounds more like a general condition: commerce among the people of the state."<br /><br />That final word should have been plural, states.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-31139252394705901472009-05-07T07:45:00.000-05:002009-05-07T07:45:00.000-05:00But we can't interpret it to refer to states', in ...But we can't interpret it to refer to states', in the corporate sense, engaging in commerce because that wouldn't have been an issue. Why would they have meant that? The only interpretation that does not involve a stretch is that it was a power to regulate commerce, period. The "interstate" idea was imposed later. This doesn't mean that the framers wanted detailed regulation or were central planners. But they did believe that this prerogative belonged to the national government, as opposed to the states.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-21634728294327921082009-05-07T07:38:00.000-05:002009-05-07T07:38:00.000-05:00But states do not and did not engage in reciprocal...<I>But states do not and did not engage in reciprocal acts of commerce, at least not to any great extent</I>Doesn't the same objection apply to definition 3? I mean, if you interpret 'among' according to definition 3, I would interpret the text - taken literally - as refering to states engaging in commerce.martinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-2102339634704936202009-05-07T00:20:00.000-05:002009-05-07T00:20:00.000-05:00Well yes.
This is why the Anti Federalists freake...Well yes.<br /><br />This is why the Anti Federalists freaked the hell out when the constitution was presented.<br /><br />Of course the Federalists knew that in each state a certain elite could be counted on to support this kind of government.Ineffabellehttps://www.blogger.com/profile/08242667381091972738noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-74110983973016416292009-05-06T15:08:00.000-05:002009-05-06T15:08:00.000-05:00Re between and among: While it's okay (if stilted)...Re between and among: While it's okay (if stilted) to say, "The commerce between Tom, Dick, and Harry has been very lucrative," one would never say, "The commerce among you and me has been a success."<br /><br />In other words, "between" may be used with more than two things, but "among" cannot be used idiomatically with only two things. English-speakers today don't talk like that, and they didn't do so in the eighteenth century either. So "commerce among the several states" does not sound like mere interstate transactions. It sounds more like a general condition: commerce among the people of the state.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-21261764594161815632009-05-06T10:43:00.000-05:002009-05-06T10:43:00.000-05:00Yes, interpreted that way without mental contortio...Yes, interpreted that way without mental contortions. Crosskey goes further and argues that the word usage of the time lends support to that interpretation. The framers were not laissez fairists.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-43377567467519636332009-05-06T10:37:00.000-05:002009-05-06T10:37:00.000-05:00Rereading everything in this discussion so far, I ...Rereading everything in this discussion so far, I realize that I was completely missing the point (pre-caffeine reading I suppose). <br /><br />To make sure I'm not still being dense, let me rephrase your point to see if I understand:<br /><br />Sheldon, you are saying that the wording of the commerce clause can be interpreted to allow the congress the ability to regulate <I>any</I> commerce within the United States?<br /><br />In other words, the clause was left open enough by the founders to encompass the regulation of any and all commerce?Leon Kassabhttps://www.blogger.com/profile/04152220852105924988noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-3849544508870806512009-05-06T10:00:00.000-05:002009-05-06T10:00:00.000-05:00But states do not and did not engage in reciprocal...But states do not and did not engage in reciprocal acts of commerce, at least not to any great extent, Martin. And it would be unidiomatic to say "commerce among the several states" when you mean "between/among inhabitants of different states."<br /><br />Definition no. 3 seems closer to what the framers had in mind.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-89092604175180375972009-05-06T09:44:00.000-05:002009-05-06T09:44:00.000-05:00Interesting... so the rule is more in-depth than I...Interesting... so the rule is more in-depth than I thought. Thanks for the linkLeon Kassabhttps://www.blogger.com/profile/04152220852105924988noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-6802680215274091422009-05-06T09:26:00.000-05:002009-05-06T09:26:00.000-05:00Scheldon Richman,
But how do you know it was a sy...Scheldon Richman,<br /><br /><I>But how do you know it was a synonym for "between"?</I>It seems the most natural interpretation to me. And because English is not my native language, I looked it up. This is what Merriam-Webster comes up with:<br /><br />Main Entry:<br />among <br />Pronunciation:<br />\ə-ˈməŋ\ <br />Variant(s):<br />also amongst \-ˈməŋ(k)st\ <br />Function:<br />preposition <br />Etymology:<br />among from Middle English, from Old English on gemonge, from on + gemonge, dative of gemong crowd, from ge- (associative prefix) + -mong (akin to Old English mengan to mix); amongst from Middle English amonges, from among + -es -s — more at co-, mingle<br />Date:<br />before 12th century<br />1: in or through the midst of : surrounded by [hidden among the trees]<br />2: in company or association with [living among artists]<br />3: by or through the aggregate of [discontent among the poor]<br />4: in the number or class of [wittiest among poets] [among other things she was president of her college class]<br />5: in shares to each of [divided among the heirs]<br />6 a: through the reciprocal acts of [quarrel among themselves] b: through the joint action of [made a fortune among themselves]<br />usage see between<br /><br />http://www.merriam-webster.com/dictionary/among<br /><br />6a seems to me the most plausible meaning.<br /><br />Another reason for interpreting it this way, one that a came up with after writing the post above, is that if the text was meant to include intrastate commerce also, 'all commerce inside the USA' would have been sufficient to cover both the 'commerce among the states' and the 'commerce with Indian Tribes'.<br /><br />Leon Kassab,<br /><br /><I>"among" is the proper usage when there are three or more entities.</I>Merriam-Webster disagrees:<br /><br /><I>There is a persistent but unfounded notion that between can be used only of two items and that among must be used for more than two.</I>(...)<br /><br />http://www.merriam-webster.com/dictionary/betweenmartinnoreply@blogger.comtag:blogger.com,1999:blog-20077444.post-9733294189673126952009-05-06T08:22:00.000-05:002009-05-06T08:22:00.000-05:00Again, drawing on Crosskey, read the clause this w...Again, drawing on Crosskey, read the clause this way: "...to regulate commerce ... among (the people of) the several states." (State governments don't trade with one another; neither do territories.) Is that what they meant? Isn't that more likely than the conventional reading?Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-55400136681107167232009-05-06T08:02:00.000-05:002009-05-06T08:02:00.000-05:00There is a line of thinking, not to be casually di...There is a line of thinking, not to be casually dismissed, that says the Constitution was not meant to create so limited a government as we have told ourselves. The story of the 10th Amendment is highly instructive. Look up Article II of the Articles of Confederation and compare to the 10th Amendment. Then realize that the demigods at Philadelphia and the first Congress rejected Article II.Sheldon Richmanhttps://www.blogger.com/profile/15672237234580563637noreply@blogger.comtag:blogger.com,1999:blog-20077444.post-71808391629496262422009-05-06T07:56:00.000-05:002009-05-06T07:56:00.000-05:00ah, I see what you're getting at. But alas, seman...ah, I see what you're getting at. But alas, semantics is a game those government types won't allow people like you and me to play.Leon Kassabhttps://www.blogger.com/profile/04152220852105924988noreply@blogger.com