A dissenting opinion.

Author:Marks, Thomas C., Jr.
Position::Use of commerce power to strike at a social problem

Marks, J., dissenting:

The results reached by the majority are, beyond question, of enormous benefit to the salutary, long and ongoing effort to fully integrate our Black citizens into American society. It is painful to dissent from such decisions, but it is a pain that must be endured. The ends, noble as they are, do not, in these circumstances, justify the means. In the long run, distortions of the clear meaning of the Constitution, however laudatory the aim, are losing propositions. As eloquently explained, years ago, by Chief Justice Fuller:

It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality. (1) In my view, this Court's approval today of Congress' use of its commerce power to strike at a social problem by relying on the real or perceived secondary effects of that social problem on commerce between the states is a "risk" that should not be "run." The "serious consequences" of such a course of action will be to bestow upon Congress a broad power of police loosely tied to the commerce power. The Constitution, rightly interpreted, does not allow this. I respectfully dissent.

There can be little doubt that Congress was given, by the Constitution, the power to regulate commerce between the states because, as Alexander Hamilton stated, "there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence." (2) Today's majority blithely ignores that it is "trade or finance," not the health, safety, morals or welfare of the residents of the States that "strongly demands a federal superintendence." "Trade or finance," does not have the authority to use the Commerce Clause to regulate social concerns.

Hamilton also spoke of "the competitions of commerce [being] another fruitful source of contention [between the States]." (3) In his brief for the Appellant, Heart of Atlanta Motel, Inc., Moreton Rolleston, Jr. provided us with evidence of this "source of contention." "In 1787, the State of New York ... assessed heavy entrance and clearance fees on all vessels coming from or bound to New Jersey and Connecticut. New Jersey retaliated by taxing the lighthouse on Sandy Hook 30 pounds a month!" (4)

Whether Hamilton had taxes on lighthouses in mind, he described for us the nature of the "contention" as he saw it:

The states less favorably circumstanced, would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each state ... would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed from the earliest settlement of the country, would give a keener edge to those causes of discontent, than they would naturally have, independent of this circumstance.... The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade, by which particular states might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations on one side, the efforts to prevent and repel them on the other, would naturally lead to outrages, and these to reprisals and wars. (5) Can there then be any doubt that, in the view of Alexander Hamilton, the commerce power was given to Congress not to provide it with a vast regulatory power that would rival the inherent police power of the states, but rather to insure the commercial harmony that the states had enjoyed as colonies under the Crown? (6) This Court has, in fact, recognized the fact that "[i]t was said by Chief Justice Marshall, that it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity of regulation against conflicting and discriminating state legislation." (7)

This understanding of the genesis of Congress' power to regulate commerce between the states has been recognized by this Court over and over again. In the State Freight Tax Case, Justice Strong opined that:

Beyond all question, the transportation of freight, or of the subjects of commerce, for the purpose of exchange or sale, is a constituent of commerce itself. This has never been doubted, and probably the transportation of articles of trade from one State to another was the prominent idea in the minds of the framers of the Constitution, when to Congress was committed the power to regulate commerce among the several states. A power to prevent embarrassing restrictions by any state was the thing desired. (8) Lest there be any doubt about the lack of interest on the part of the framers to subordinate the states' inherent police power to the more specific and, thus limited, grants to Congress found in the Constitution, James Madison stated:

In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The [State] governments, which can extend their care to all those other objects, which can be separately provided for, will retain their due authority and activity. (9) It is important to note that the proper control of commerce between the states "concern[s] all members of the republic" and "are not attained by the separate provisions of any." On the other hand, the other "objects" of government are left to the states to regulate or not under their inherent police power. Can social concerns be regulated by the states? Yes. Is Congress empowered to do so? No.

The decision of this Court that is the benchmark for our interpretation of the Commerce Clause is, of course, Gibbons v. Ogden. (10) An understanding of this case must be against the background of Chief Justice Marshall's view of the need for a strong central government. This view had motivated this Court's decision in McCulloch v. Maryland, (11) which gave the Necessary and Proper Clause (12) the broadest possible interpretation. To read the penultimate sentence in the opinion (which contains probably the most important words in all of constitutional law) is to see the point: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (13)

Let Marshall's principal biographer, Albert Beveridge, explain:

And when in blue and buff, as an officer of the Continental army, he joined Washington, the boyish Virginia lieutenant was still a frontier individualist, though of the moderate type. But four years of fighting and suffering showed him that, without a strong and practical government, democracy cannot solve its giant problems and orderly liberty cannot live. The ramshackle Revolutionary establishment was, he found, no government at all. Hundreds of instances of its incredible dissensions and criminal inefficiency faced him throughout these four terrible years; and Marshall has recorded many of them. Not only did each State do as it pleased, as we have seen, but these pompous sovereignties actually interfered in direct and fatal fashion with the Continental army itself. For example, when the soldiers of the line from one State happened to be in another State, the civil power of the latter often 'attempted to interfere and to discharge them, notwithstanding the fact that they were not even citizens of that State.' The mutiny of underfed, poorly clothed, unpaid troops, even in the State lines; the yielding of Congress to their demands, which, though just in themselves, it was perilous to grant on compulsion; the discontent of the people caused by the forcible State seizure of supplies--a seizure which a strong National Government could not have surpassed in harshness--were still other illustrations of the absolute need of an efficient central power. A few 'judicious patriots' did urge the strengthening of National authority, but, writes Marshall, they were helpless to 'correct that fatal disposition of power [by States and Congress] which had been made by enthusiasm uninstructed by experience.' Time and again Marshall describes the utter absence of civil and military correlations and the fearful results he had felt and witnessed while a Revolutionary officer. Thus it is that, in his service as a soldier in the War for our Independence, we find the fountain-head of John Marshall's National thinking. And every succeeding circumstance of his swift-moving and dramatic life made plainer and clearer the lesson taught him on red battlefield and fetid camp. No one can really understand Marshall's part in the building of the American Nation without going back to these sources. For, like all living...

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