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Commerce Clause – Eileen Li

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Context

In 1781, five years after the colonies became free from British rule, the Articles of Confederation were implemented. This document was an agreement between the 13 states that attempted to establish the functions of the national government. The Articles allowed each state to have power over their own trade. They worked independently and competitively against each other, and even established trade barriers. Congress was prohibited from regulating any commerce, so the rising inflation rates could not be controlled, and America’s economy grew weak. In response to these economic problems, a convention was held in 1789. 

 

Common interpretation

The Commerce Clause was formed here, which gave Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is commonly interpreted as giving Congress power to regulate international and interstate commerce, and trade with Indian Tribes, as well as prohibit states from interfering with Congress’ decisions. 

 

Matters of Debate

However, the undefined meanings of the words “to regulate”, “commerce” and “among the several States” make this clause open to interpretation. For example, in the case of Gibbons v. Ogden, the word “commerce” was argued to include people, not just goods. Thomas Gibbons, given permission by the federal government to operate steamboats between New York City and the New Jersey coast, sued Aaron Ogden, who was backed up by the State of New York to do the same, after Gibbons was denied access to these waterways. In the end, the Court ruled in Gibbon’s favor. The argument was that the definition of “commerce” included the people carried in steamboats, so steamboats would be considered as commerce, and the powers of Congress from the Commerce Clause could be applied. The reasoning of Chief Justice Marshall was that “commerce” was not only buying and selling, but also intercourse and thus navigation. 

Another matter of debate was introduced in United States v. Darby, where the meanings of “to regulate” and “among the several States” were expanded. The FLSA (Fair Labor Standards Act) was passed in 1938, and set minimum wages, maximum hours, etc. Darby, a lumber manufacturer, was arrested after shipping lumber out of state while violating the FLSA. In this case, the Court reaffirmed this Act to be constitutional, which gave Congress the power to prohibit manufacturing goods inside states with the FLSA. Another reason why Congress was given this power was because intrastate commerce would affect interstate commerce, which the government was already in charge of by the Commerce Clause. Previously, the common interpretations of “to regulate” and “among the several States” led to Congress regulating commerce between two or more states. However, these meanings were expanded in the case of United States v. Darby, giving Congress the power to regulate interstate and now intrastate commerce.

 

Significance

The concepts of the Commerce Clause connect to some ideas of early modern enlightenment philosophers such as Rousseau, as they both emphasized the importance of a strong central government. Personally, I would not change this clause because I think this idea is extremely important. If Congress wasn’t in charge of states’ trade, the free market wouldn’t exist, and America’s economy would worsen.

Elections and Suspension Clause – Alex Berman

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The Articles of Confederation demonstrated the dangers of giving states too much power, so when drafting the Elections Clause worries arose that if each state had complete control over their own elections, they could compromise Congress’ abilities by opting not to hold an election at all. Thus, the Elections Clause gives states the authority to regulate most aspects of congressional elections, while still offering Congress the power to overwrite any of those regulations. In the Elections Clause, a lack of clarification, such as the meaning of state legislature and what counts as prescribing the “times, places, and manner of holding elections,” has led to varying interpretations of the right of states to regulate elections.

In the supreme court case of Cook V. Gralike, Missouri argued that they could put negative warnings on an election ballot based on if a candidate would support a bill or not. This was ruled unconstitutional because while it is an alteration of the manner of an election, it at the same time is an attempt to regulate the outcome of the election. I agree with this decision because the Elections Clause allows states and congress to regulate the manner of congressional elections, but not their outcomes. For the sake of clarification, the Elections Clause should be amended to define in more detail state legislature and the regulatory actions that states are allowed to take. The Elections Clause demonstrates how the faults seen in the Articles of Confederation were addressed in the Constitution, primarily by granting the federal government power over the states. In article 1, section 9 of the Constitution, the Suspension Clause explains the application and suspension of habeas corpus.

The writ of habeas corpus protects citizens from being arbitrarily arrested by allowing someone who has been arrested to challenge the legal justification of their detention in court. Americans knew that people in England, up until just over a century before the Constitutional Convention, were sometimes imprisoned for life without any trial. Thus, the writ of habeas corpus was of the utmost importance to include in the Constitution. Equally important, however, was Congress’ right to suspend it, illustrated by the fact that habeas corpus was suspended just months before the Constitutional Convention during Shays’ rebellion. The Suspension Clause insures that someone who has been arrested has the right to a trial, unless the arrest is during a rebellion or invasion. A debate about the Suspension Clause, however, regards the process with which habeas corpus can be suspended. In the four instances of suspension, three times the president got permission through Congress, however during the civil war Abraham Lincoln suspended habeas corpus on his own, without the expressed consent of Congress.

To me it would make more sense for a president to first need to get permission from congress to prevent the president from having sole authority to make unlimited uncontested arrests. Because of this, I believe that the Suspension Clause should be amended to clarify the process to suspend habeas corpus.

Jason Joseph – The Commerce Clause and Declare War Clause

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Under the Articles of Confederation, states had the power to handle their commerce largely independently which hindered trade between states and hurt the overall economy. The Commerce Clause allowed Congress to centralize trade between nations, states, and Indian tribes. This increased trade and the movement of goods, bolstering the economy. In 1808, the first year it was authorized by the constitution to do so, Congress banned the importation of slaves because it fell under foreign commerce. This, as well as Gibbons v. Ogden (1824), provided a precedent for Congress to overrule state laws that pertained to interstate or foreign commerce. Katzenbach v. McClung (1964) was a case where McClung believed Congress had no power to integrate his restaurant. McClung was forced to integrate because his business fit the definition of interstate commerce and Congress therefore had authority over it. The Supreme Court ruled that segregation created limitations on African Americans who traveled to different states, falling under the Commerce Clause, allowing Congress to gain more authority over the states to end segregation. The definition of interstate commerce is highly contested with those wanting decreased government oversight pushing for the original definition of navigation and trade, and those wanting increased government oversight arguing for a broader interpretation. By leaving the meaning of interstate commerce broad it assures that as the circumstances in the United States change so too can the economic practices.

The Declare War clause gives Congress the sole power to wage war, commandeer citizens’ ships in times of war, and provide legislation over obtained territory. The framers intended the Declare War clause to serve as a check to the President’s military power. However, the framers also wanted The President to keep enough autonomy in order to respond to sudden attacks against the nation. In 1964, Congress authorized military support to defend the assets and allies the United States had in Southeast Asia. This led to the Vietnam War, an undeclared war,  where The President took actions that vastly expanded on Congress’ authorization, such as having a draft. When President Nixon approved a secret bombing in Cambodia during the war, Congress realized it needed increased power in foreign military conflicts. The War Powers Resolution of 1973, mandates that The President communicate with Congress before using force, and obtain approval from Congress for missions longer than 60 days. This is intended to allow Congress to control the military direction of the nation. On the contrary, this resolution gives The President 60 days of unauthorized action, which prior to the resolution The President did not have. As weapons’ capability for destruction grows, troops travel faster, and information is spread more rapidly, the devastation and lasting impact that can be accomplished in 60 days of conflict is increasing. Can military action that profoundly affects the entire United States and the well-being of other nations be entrusted to a single individual?

 

Bibliography

Barnett, Randy E. “Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Barnett, Randy E., and Andrew Koppelman. “The Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Denniston, Lyle. “Was the Vietnam War Unconstitutional?” National Constitution Center. Last modified September 20, 2017. Accessed May 30, 2023. https://constitutioncenter.org/blog/was-the-vietnam-war-unconstitutional.

 

Oyez. “Gibbons v. Ogden.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1789-1850/22us1.

 

———. “Katzenbach v. McClung.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1964/543.

 

Ramsay, Michael D., and Stephen I. Vladeck. “Declare War Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Richard Nixon Presidential Library and Museum. “War Powers Resolution of 1973.” Richard Nixon Presidential Library and Museum. Last modified July 27, 2021. Accessed May 31, 2023. https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=The%20War%20Powers%20Resolution%20of,the%20executive%20branch’s%20power%20when.

 

Vladeck, Stephen I. “Congress’s Statutory Abdication of Its Declare War Power.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Connor Smyth – The Election Clause and Suspension Clause

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Election Clause: The Election Clause, located in Article I, Section 4, Clause 1 of the United States Constitution, addresses the regulation and conduct of elections for Senators and Representatives. It says that the “Times, Places, and Manner” of holding elections shall be determined by state legislatures while still granting Congress the authority to make or alter regulations, except for the selection of Senators’ places. The content of the Election Clause reflects the framers’ intent to establish a federal system that respects the freedom of individual states while ensuring a degree of federal oversight. By granting primary authority to state legislatures, this allows each state to tailor its electoral system according to its unique circumstances and demographics. The significance of the Election Clause lies in its role in safeguarding the democratic principles of the United States. It allows states to administer elections and shape their own voting regulations. Simultaneously, the clause empowers Congress to intervene if necessary to protect the fairness of federal elections or ensure the fair treatment of voters. This authority enables Congress to pass laws that establish uniform standards, address discriminatory practices, and guarantee the protection of voting rights.The Election Clause has played a significant role in defining the limits of state and federal authority, particularly through landmark decisions such in the case of the Voters Act of 1965, which involved the protection of free voting rights for all. This provision remains a cornerstone of American democracy, ensuring the protection of voting rights and the integrity of the electoral system.

 

Suspension Clause: The Suspension Clause, found in Article I, Section 9, Clause 2 of the United States Constitution, addresses the power to suspend the privilege of the writ of habeas corpus. It states that the right to habeas corpus, the requirement that someone that is arrested must be brought before a judge or into court, may not be suspended or delayed unless in the case of rebellion, invasion, or if the public may be in danger. The Suspension Clause sets a high threshold for suspending this privilege, permitting it only in cases of rebellion or invasion when public safety is at risk. By requiring such exceptional circumstances, the clause ensures that the writ of habeas corpus is not casually or unjustly suspended, preserving the right to challenge one’s detention before a court. The clause acts as a check on executive authority, requiring a legitimate and urgent threat to public safety before the suspension of habeas corpus can occur. Throughout history, the Suspension Clause has been invoked during times of crisis, such as the Civil War and World War II, to address threats to national security. Legal interpretations and debates have revolved around the scope of the clause, including questions of its applicability to non-citizens, the extent of judicial review, and the duration of suspension. The Suspension Clause continues to be relevant today, as issues such as terrorism and national emergencies prompt discussions about the delicate balance between civil liberties and security. 

Reese C-Constitution Project-The Declare War Clause

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The Declare War Clause is a part of the eighth section of the first article of the Constitution of the United States. The clause states “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The framers of the Constitution wished to include this clause to create a concrete limit on the power of the executive branch and disallow a single person from controlling such a momentous decision as Declaring War, unlike the British Monarchy where the king can declare war.

By vesting the power to declare war in the hands of Congress, the framers guaranteed that there would be checks and balances to the decision as Congress would need to vote to instigate a war. The clause has commonly been understood as vesting the power to declare war in Congress in order to limit the power of the Executive Branch and add a democratic process into the steps to declare war However, it is slightly contested among scholars as a majority of scholars agree that Presidents cannot instigate wars without the permission of Congress while a minority believes that the Declare War Clause only gives Congress the power to make formal declarations of war and as a result, the President can declare war.

To support this point, some scholars have looked carefully at the language of the clause and argued that the power to “declare war” can be thought of as a formal declaration and not the use of military force. As well, these scholars have looked into the historical practices of the clause: In response to attacks on American Ships in the Bey of Tripoli during Thomas Jefferson’s presidency, Jefferson responded by sending ships to the Bey but instructed them to not attack the enemy ships and to only subdue them.

Jefferson felt that by commanding his ships to not attack the enemies, he wouldn’t be violating the Declare War Clause. In response to Jeffersons’ actions, former Secretary of the Treasury, Alexander Hamilton, stated that he found the clause to be vesting the power to declare war in the hands of Congress, but if another country had initiated a war, as the Tripolitans had in this case, then the country was already in a state of war and due to this, no declaration was needed to initiate war and use violence.

Using Jefferson’s actions and Hamilton’s view, scholars have argued that Presidents are allowed to deploy troops that are not involved in combat and initiate war if it is in response to attacks on the country. In the 1863 Prizes Case, the Supreme Court sustained President Lincoln’s blockade of southern states’ ports, without the permission of Congress, in response to the state’s attack on Fort Sumter. The court concluded that the blockade was constitutional because a state of war was in place as a result of the attack, therefore, the permission of Congress was not needed. The case clearly illustrates the President’s power to initiate war in the case of an attack on the country.

The Declare War Clause distinctly exhibits the separation of powers, which was heavily implemented by the French in their constitutions and it represents how both the American and French constitutions were heavily influenced by each country’s negative experiences under monarchs. I find that the scholars who believe that the Declare War Clause only gives Congress the ability to formally declare war are a minority for a reason: It seems backwards to think that the framers of the Constitution would not add a key separation of powers and that instead, that they were only talking about formalities.

I believe this because the concept of separation of powers is one of the backbones of the constitution and so I feel that it is more reasonable that this clause is using the concept. If I had the ability to amend the clause I would opt to add a section stating that the President cannot declare war unless the country has been attacked or they have the permission of Congress. I think this adds a lot of clarity and prevents any future President from feeling like they could not use the full force needed because they were trying to follow the clause so carefully. 

 

Declare War Clause: Article 1, Section 8

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When the Constitution was created, Article 1, Section 8 dealt with federalism, the separation of the powers on the national level versus the state level. The common interpretation of this section has changed over time, and one can generalize them into four broad categories in chronological order. At first, this section was perceived as Enumerated Rights Federalism, which meant that the national government was characterized as a government with limited powers. The national government had power as far as the enumeration in Section 8 went, but the states had everything else that was left over. State power was not given by outlining them directly, but instead by outlining the power of the federal government.

The second category was Fundamental Rights Federalism, where after the Civil War and the Civil Rights Act, the federal government was given the power to override state legislation in order to protect the fundamental rights of American citizens. The third category was New Deal Federalism, which ended Enumerated Rights Federalism, because this gave the federal government the power to regulate the states themselves in terms of intrastate commerce.

Now, enter into the modern era, where courts are trying to find a way to draw lines in order to identify where Congress’ powers end and where states’ powers start. Such efforts include preventing Congress from interfering in noneconomic intrastate activity. This is called State Sovereignty Federalism, where courts try to carve out a zone of autonomy for the states. Federalism has been debated for a long time, whether it be the amount of rights delegated to the national government and Congress versus the states. Some are staunch supporters of giving states the vast majority of rights, pointing to how individual states can establish different legislative/economic systems as a form of experimentation to see which sort of system works best.

Some argue that the methods of the court in terms of determining federalism based on the sovereignty of the states is not a method that adequately takes into account the intricacies of the relationship between the federal and state governments. When talking specifically about the Declare War Clause in Section 8, the common interpretation of that also falls into debate. However, the two sides of the debate are a bit different from the federal vs state government debate.

The debate in this clause specifically is between the executive branch and the legislative branch. The wording of the clause states that Congress can “declare war”, make legislation about conquering on land and water, authority to permit privateers to use force upon an enemy, and authority to legalize the seizing of another foreign nation’s property as repayment for debt. Up until the modern era, it has been unclear whether the Declare War Clause permits the executive branch to respond to sudden violent attacks.

In the case of The Bey of Tripoli, when war was declared upon the United States, President Thomas Jefferson sent frigates in response. However, Congress never formally declared a state of war with the Bey of Tripoli, and ever since, it has been unclear to what extent the executive branch can respond with force to a threat without the authorization of Congress, if at all. Judicial courts have also largely left this issue alone, so the executive branch and Congress have simply needed to reach a state of compromise and agreement with each other.