Check Mike Check Sound Circulate Attendance

Check Mike Check Sound Circulate Attendance Time

Today’s Lecture: • Anti-Federalist and Laissez Faire Commerce Clause • The Taney Commerce Clause • The Laissez Faire Commerce Clause

Lecture Organization: • Class Announcements • Review • Brown v. Maryland • Introduction to Roger Brooke Taney • Rise of the Dormant Commerce Power • Social Transformation • E.C. Knight • Hammer v. Daggenhart Time

Class Announcements Next Quiz -- Part II of the course is shorter than Part I -- You will only have 1 quiz for Part II -- It will be after Spring Break (Friday, March 21st) Untested lectures -- Three lectures from Part I remain untested. They will be tested in Part II -- They are: lecture 8 (failed audio), lecture 10 (Marbury) and lecture 11 (the last one). -- I’ll be accepting quiz questions from you on those at any time.

Class Announcements Exam -- Sent to scantron place this week -- I have to create the answer key

Time Class Announcements Next Cases • -- Today: • New York v. Miln • E.C. Knight • Hammer v. Dagenhart • -- if we finish, head into the Taxing cases • McCray • Bailey • Butler Questions? • Only 1 brief – • Only 1 brief accepted

Review “Commerce Clause” -- There is an extremely important clause in the Constitution called a “commerce clause”

Commerce Clause Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Three basic ideas: -- It must be “commerce” -- It must be “interstate” -- and THAT must be the objective? Copyright, Sean Wilson. 2007

Review John Marshall’s Commerce Clause Gibbons v. Ogden • -- Defined “commerce” as a broad activity. • -- He called it an “intercourse;” a better word is probably just “economy” • -- He conceded, however, that there was a sphere of economic activity that remained “local” and hence was not interstate commerce.

Marshall ‘s Commerce Clause If it remains completely local, it is not federal business Wants to GOVERN this thing! continuing its venture inside one state State A State B crossing a border An “intercourse” (a broad concept) “Uncle Sam” No matter where it goes, it is federal business Local Activity Cannot Be Touched -- Does not extend to activities completely internal or local (e.g., state inspection laws). State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. “Interstate Commerce” State C State D Copyright, Sean Wilson. 2007

Review John Marshall’s Commerce Clause Regulation means “to govern” • -- the power to regulate does not mean just calling fouls between the trading participants, or setting uniform commercial trade rules • -- it means the power to govern the entire activity of the American economy • -- But what does he mean here? • banning goods? • breaking up monopolies? • ending slavery in commerce? Morality in business?

Review John Marshall’s Commerce Clause “Exclusivity” Premise • -- Marshall also says that whatever sphere of authority the government has to govern the nation’s economy, it belongs ONLY to the feds. • -- Either/or logic, If/then logic • -- If we have this power, you cannot have it. The Constitution gives that to us.

Commerce Clause Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Anything Economic Exclusive Govern So long as it is not purely local within a state Copyright, Sean Wilson. 2007

Brown v. Maryland (1827) Facts: • Maryland wanted to regulate people who sell products from other states or countries • Today, it would be like regulating the “Wallmart” as opposed to the local produce market • required each store to get a $50.00 licensing fee • Here is the statute The statute -- all IMPORTERS of foreign articles or commodities, of dry goods, wares, or merchandise, by bale or package, or of wine, rum, brandy, whiskey and other distilled spirituous liquors, &c., and other persons SELLING the same by wholesale, bale or package, hogshead, barrel, or tierce, shall, before they are authorized to sell, take out a license … for which they shall pay fifty dollars Question: Is the statute constitutional?

Time Brown v. Maryland (1827) The ruling Original Package Rule • Not allowed if the product is in its original package. • idea: commerce that travels from one state to the next in an unopened package can only be regulated by the federal government, not the states

Introduction to Roger Brooke Taney Who is Roger Brooke Taney? • --Central Believer in “Jacksonian-Era America:” • pro-slavery • pro agrarian ideology (anti-banks, anti-Hamilton) • second-generation Jeffersonians • was Andrew Jackson’s Attorney General • was also the officer in the Jackson administration that executed the order to withdraw all of the federal funds from the Bank of the United States (explain) Copyright, Sean Wilson. 2007

Introduction to Roger Brooke Taney Who is Roger Brooke Taney? • pro states rights • was also the author of Dred Scott (explain) • (views were consistent with his days of being Jackson’s attorney general) • Taney was the attorney who lost Brown v. Maryland Copyright, Sean Wilson. 2007

Time Introduction to Roger Brooke Taney Who is Roger Brooke Taney? • Taney’s appointment to the Supreme Court: • -- “Borked” in 1835 (Senate would not act on his appointment) • -- When John Marshall died, his appointment was successful • -- fierce debate in Congress that lasted 3 months. Copyright, Sean Wilson. 2007

Mayor of New York v. Miln Facts: • Vessels coming to NY had to provide a list of passengers and post a 3-year bond against vagrancy and poverty. • A bond is called a “surety.” It is, in the common tongue, “bail.” • Post “bail” against your poverty (“poor law”) • New Yorkers are beginning to think that immigration is out of control – 60,500 yearly into the port (just wait until later in the century!) • The ship captains who bring them here charge fees – that is there business (think of it as a really long ferry ride) Question: What are the Facts of this case?

Conceptualizing Miln The posting of the bond is a regulation of his business. It makes his ferry riding less profitable. Imagine someone requiring an international taxi or airplane company to pay a bond for every passenger that is unemployed after transit. Post Bond People From Europe (or wherever) To New York Copyright, Sean Wilson. 2007

Mayor of New York v. Miln Ruling: “Police Power” • 1. This is intended as a “police power,” not a regulation of commerce • 2. So long as it does not conflict with a federal statute, it is ok • -- let’s look at the logic. Question: What does the rule of law say? Answer: Gibbons says this is interstate commerce Question: What does the Taney Court say?

Mayor of New York v. Miln Ruling: “Police Power” • 1. This is intended as a “police power,” not a regulation of commerce • 2. So long as it does not conflict with a federal statute, it is ok • -- let’s look at the logic. It’s a Police Power -- “The law is not a commercial regulation, in the sense contemplated in the constitution; but a police regulation. It is a part of the system of poor laws, and intended to prevent the introduction of foreign paupers

Mayor of New York v. Miln Ruling: “Police Power” • 1. This is a “police power,” not a regulation of commerce • 2. So long as it does not conflict with a federal statute, it is ok • -- let’s look at the logic. Inherent Power -- This power of determining how and when strangers are to be admitted, is inherent in all communities. Fathers of families, officers of colleges, and the authorities of walled cities, all have this power, as an incident of police

Mayor of New York v. Miln Ruling: “Police Power” • 1. This is a “police power,” not a regulation of commerce • 2. So long as it does not conflict with a federal statute, it is ok • -- let’s look at the logic. Inherent State Power -- In states, it is a high sovereign power. It belonged to the states, before the adoption of the federal constitution. It is nowhere relinquished; nor can it be, with safety. It is essential to the very existence of some, and to the prosperity and tranquility of all. That it was not intended to relinquish it, we infer: 1st. Because it was not prohibited to the states. 2d. Because it is not expressly granted to Congress

Mayor of New York v. Miln Ruling: “Police Power” The 1808 Clause -- The 1808 Clause declares, that 'the migration or importation of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by congress prior to 1808.” What is the meaning of the words, “the states shall think proper to admit?” States can only think through their laws; legislation is the thought of states. The very phrase shows that the states reserved the power to admit or prohibit; and consequently, to regulate the admission. The power of congress is suspended until 1808; but the power of the states remains as before the constitution. • 1. This is a “police power,” not a regulation of commerce • 2. So long as it does not conflict with a federal statute, it is ok • -- let’s look at the logic.

Conceptualizing Police Powers Federal Government States Everything NOT given to Feds in the Constitution Everything given by the Constitution Including the natural right to police for health and safety Question: How can this be reconciled with the exclusivity premise? Question: How is this case factually different from Gibbons? Answer: No conflict with a federal statute Time Copyright, Sean Wilson. 2007

The Rise of the Dormant Commerce Power License Cases • -- a state passed a law that said, before you sell liquor, you need a license. (liquor license law) • -- Held: The states are allowed to do this. • -- Two reasons: (1) no federal law contradicts; (2) this is a purely local activity • -- Taney objects to the exclusivity premise. Answer: No. This is actually intended as a regulation of commerce. It’s just intrastate commerce Question: What does the rule of law say? Question: Is this a police power? Answer: It’s a local activity

The Rise of the Dormant Commerce Power License Cases • -- a state passed a law that said, before you sell liquor, you need a license. (liquor license law) • -- Held: The states are allowed to do this. • -- Two reasons: (1) no federal law contradicts; (2) this is a purely local activity • -- Taney objects to the exclusivity premise. Exclusivity Premise Objected to -- “But with every respect for the opinion of my brethren with whom I do not agree, it appears to me to be very clear, that the mere grant of power to the general government cannot, upon any just principles of construction, be construed to be an absolute prohibition to the exercise of any power over the same subject by the States.” -- Excerpt from Taney the License Cases

The Rise of the Dormant Commerce Power Cooley v. Board of Wardens • -- Thefacts: Ships had to use a local pilot when sailing into Philadelphia The Pennsylvania Law -- A Pennsylvania law required that all ships entering or leaving the port of Philadelphia hire a local pilot. Ships that fail to do so would be subject to a fine, which would go to a fund for retire pilots and their dependents. This fund was administered by the Board of Wardens of the Port of Philadelphia. Cooley was a ship owner. He refused to hire a local pilot and he also refused to pay the fine.

Conceptualizing Cooley The paying of a local pilot increases the cost of the business. It makes ferrying less profitable. Question: How should the case come out? Question: Is this case different from Gibbons in any material way? Question: What does the rule of law say? Question: Is this interstate or intrastate commerce? Question: Is this a police power, or is it intended as an economic regulation Pay for a local Pilot Anything From Anywhere To Phili Copyright, Sean Wilson. 2007

The Rise of the Dormant Commerce Power Cooley v. Board of Wardens • -- Theholding: The law is just fine, because: • -- Exclusivity only extends to those situations where uniformity is required. • -- Hence, if this is one of those regulations where uniformity is not required, we, the states, get to regulate commerce, too. • -- Marshall’s exclusivity premise is now dead “Selective Exclusivity”

The Rise of the Dormant Commerce Power Cooley v. Board of Wardens Selective Exclusivity -- Navigation was commerce; and, piloting was navigation. Therefore, the subject to be regulated was “commerce.” However, “some subjects demand a single uniform rule for the whole nation, while others, like pilotage, demand diverse local rules to cope with varying local conditions.” The power of Congress to be the exclusive say was therefore selective. For some things it would be the exclusive say, for others, it would not. Congress exercises exclusive power only over “subjects of this power [that] are in their nature national, or admit only of one uniform system or plan of regulation” [only where “one size fits all” – my words] • -- Theholding: The law is just fine, because: • -- Exclusivity only extends to those situations where uniformity is required. • -- Hence, if this is one of those regulations where uniformity is not required, we, the states, get to regulate commerce, too. • -- Marshall’s exclusivity premise is now dead “Selective Exclusivity”

The Rise of the Dormant Commerce Power Cooley v. Board of Wardens The Legal Point • -- There is now something called the “dormant commerce clause.” • -- States can regulate even the INTERSTATE economy in the absence of federal legislation Question: Do you think that is a correct interpretation of the constitution?

The Rise of the Dormant Commerce Power Cooley v. Board of Wardens The Political Point • -- Would these cases have come out any differently if the Court was closer to the fire? (Keep track of this question) Your final course paper Question: Why do you think I am showing you these cases? Of what relevance are these stupid cases to you? Regime Politics!

A Helpful Table Showing How to Synthesize Cases Time Copyright, Sean Wilson. 2007

Social Transformation Hamilton’s America Arrives -- America will go through large scale social transformation in the post civil war years. Hamilton’s America will come to pass; while Jefferson’s begins to die out Banking Becomes a common practice everywhere Manufacturing Becomes a common practice everywhere Corporations Becomes a common practice everywhere Urbanization The cities begin to swell Industrialization Takes off in the 1800s

Social Transformation No longer a regional issue -- These things are no longer a sectional or regional issue (north and south adopt these economic institutions) -- They are no longer new world versus old world (the new world is swallowing up the old world) -- Northern and Southern elites begin making money the same way

Social Transformation Large Scale Production • -- From 1863-1899, index of manufacturing production rose by more than 700 percent • Andrew Carnegie • Innovations in Steel production (Bessemer technology) Copyright, Sean Wilson. 2007

Social Transformation New Economic Goliaths • -- Mergers, Trusts, Monopolies, Oligopolies • -- New “economic Godzillas in an agrarian legal order” Fundamentally-important point (explain) Copyright, Sean Wilson. 2007

Social Transformation Population -- doubled between 1870 and 1900 Copyright, Sean Wilson. 2007

Social Transformation Immigration -- vast amounts from eastern and central Europe Copyright, Sean Wilson. 2007

Social Transformation Labor Movement • -- Labor unions form • -- 8 hours a day, 48 hour work week • -- Terrible strikes in the late 1800s (Eugene debs) • violence, death • -- anti-strike laws (jail) • -- sit down strikes • -- people are demanding labor reform Copyright, Sean Wilson. 2007

Social Transformation Capitalism gets sick? • -- New phenomenon: the roller coaster ride • -- Left unabated and unchecked, the new industrial capitalism seemed to have fits of boom and bust • -- sort of “bipolar” (highs too high, lows too low) • -- For example • -- depression in 1870s and 1890s • (1890’s would have been America’s “great depression” if it would not have been for the Great Depression. • Mention how overproduction sent prices down (and farmers just kept producing to the max) Copyright, Sean Wilson. 2007

Social Transformation Should there be rules for capitalism? -- Certain kinds of abuses would occur -- worker injuries, child labor, unsafe products -- the Upton Sinclair book Famous book written by Upton Sinclair, called the “The Jungle,” which chronicled how the manufacturers of beef -- specifically, sausages -- had worked on conveyor belts, and rats would jump up on the conveyor belts and be chopped up and put into the sausages. The manufactures of the sausages didn’t care Copyright, Sean Wilson. 2007

Social Transformation Transformation in the organization of political ideology -- something fascinating results -- how political ideology is organized, changes Copyright, Sean Wilson. 2007

Farmers Steelworkers Coal Miners etc Plantation Hegemony The forces of capital Labor Copyright, Sean Wilson. 2007

A new rationalization for the power center! No more states rights! Plantation Hegemony Laissez Faire Copyright, Sean Wilson. 2007

E.C. Knight Facts: • -- Congress passed the Sherman Anti-Trust Act in 1890. • -- Concerned about large conglomerations and trusts • -- American Sugar Refining Company • purchased 4 sugar refineries in PA • controlled over 98 percent of the sugar-refining business in the United States. • E.C. Knight was one of the refineries Outlawed -- It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal Question: What does the rule of law say about this? Can Congress do this? Question: What are the facts of this case?

Check Mike Check Sound Circulate Attendance