Commerce Clause and Due Process, United States v. Carolene Products Co.

[A18]

United States v. Carolene Products Co., 304 U.S. 144 (1938)

Relevant portions of the statute:

      'Section 61. ... (c) The term 'filled milk' means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, Powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated.'

      's 62. ... It is declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to ... ship or deliver for shipment in interstate or foreign commerce, any filled milk.'

Discuss. Not the infamous (some say famous) Footnote Four, but the actual issue at hand.

[Emsworth]

The statute was constitutional. According to the statute, "It shall be unlawful for any person to ... ship or deliver for shipment in interstate or foreign commerce, any filled milk." The terms of the statute suggest that only interstate and foreign shipments of filled milk are unlawful. If filled milk is sold or shipped within a single state, then the statute is not violated. This seems to be a perfectly legitimate exercise of the commerce power.

The due process argument, of course, is so unsound that no response is necessary.

[A18]

The least expansive definition of "to regulate" is to "make regular"--to facilitate. In this case, to facilitate the free flow of goods, but not to prohibit the flow of any good, except in cases of harm. I think there is much to be said for this interpretation of the regulatory power conferred by the Commerce Clause.

The term "regulate/regulation" appears eight times in the original Constitution.

Article I, Section 4 gives Congress the power to "alter such regulations" on the time, place, and manner of elections proscribed by the legislatures of the several states. Certainly, the power to regulate elections is not the power to prohibit them.

Article I, Section 8 gives Congress the power to "regulate ... the Value" of money. Could Congress prohibit the use of money, or set its value to zero?

The same section gives Congress the power to "make Rules for the Government and Regulation of the land and naval Forces." Here, "government" appears to be contrasted with "regulation."

Article III, Section 2 distinguishes between "exceptions" to and "regulations" of the Supreme Court's appellate jurisdiction.

Article IV, Section 3 gives Congress the power to dispose of territories, as well as to make needful regulations respecting them. This one may be a bit of a stretch, but note also the distinction between rules and regulations.

Two others shed no light on the subject, and the one other is of course in the Commerce Clause itself.

I do have to admit, however, that the power to regulate commerce with foreign nations undoubtedly includes the power to prohibit such transactions.

[Emsworth]

The least expansive definition of "to regulate" is to "make regular"--to facilitate. In this case, to facilitate the free flow of goods, but not to prohibit the flow of any good, except in cases of harm. I think there is much to be said for this interpretation of the regulatory power conferred by the Commerce Clause.

I would not agree with such a limited reading of the power to regulate commerce. As Chief Justice Marshall wrote in Gibbons v. Ogden, the power to regulate interstate, foreign, and Indian commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Nowhere does the Constitution suggest that Congress may use the commerce power to encourage, but not constrict, the flow of goods. Congress may use the power for one purpose or the other, as it pleases

[A18]

Uh, that depends entirely on what the definition of 'regulate' is. I already presented my case for the narrower definition, and you ignored it.

[Emsworth]

I already presented my case for the narrower definition, and you ignored it.

Your argument seems somewhat contradictory. It might be argued that the word "regulate" has different meanings in different clauses. But I cannot see how one can argue that the same word means two different things in the same clause. If the power to regulate foreign commerce includes the power to prohibit, then why doesn't the power to regulate interstate commerce include the same power to prohibit?

Moreover, you seem to admit that Congress may prohibit the flow of goods "in cases of harm." Needless to say, the judgment of whether any particular good is harmful is a legislative one. Surely, the judiciary may not question Congress' judgment that filled milk is harmful.

[A18]

One could go the Madisonian route, and point out that the plain purpose of each power is the opposite of the other. The foreign commerce power is there to allow for restrictions on foreign trade, and the domestic commerce power to obliterate domestic restrictions on trade.

By 'harm,' I mean cases of fraud, or shipping WMDs to KKK members in Alabama.

[Emsworth]

One could go the Madisonian route, and point out that the plain purpose of each power is the opposite of the other.

That is hardly plain from the text of the clause. In the words of Justice Story, "the motive of the grant of the power is not even alluded to in the constitution... A power to regulate commerce is not necessarily a power to advance its interests. It may in given cases suspend its operations and restrict its advancement and scope."

Even in the nineteenth century, when the Supreme Court adhered to an extremely limited interpretation of the commerce clause, it was well-established that the power to regulate interstate commerce was as extensive as the power to regulate foreign commerce. In the License Cases (1847), Chief Justice Taney wrote, "The power to regulate commerce among the several States is granted to Congress in the same clause, and by the same words, as the power to regulate commerce with foreign nations, and is coextensive with it." And in Pittsburgh & Southern Coal Co. v. Bates (1895), Justice Field--who, I might add, was no friend of governmental power--concluded, "The power to regulate commerce among the several states was granted to congress in terms as absolute as is the power to regulate commerce with foreign nations."

It is difficult to sustain the theory that the power to "regulate" foreign commerce is different from the power to "regulate" interstate commerce, or to "regulate" Indian commerce, on the basis of the text.

[A18]

Text without context is empty. You made a similar point in stating that the application of the Equal Protection Clause should be limited to racial classifications.

You admit that a term may have more than one meaning in the same law or constitution. The question then is whether it can have the same meaning in the same phrase.

But we divide that phrase into three different "clauses" precisely because they are seen as different provisions, lumped together for the sake of being concise.

I would note that my approach is perfectly consistent with contract law.

[Emsworth]

I feel constrained to point out what I consider to be an inconsistency in your argument. You pointed out other instances of the word "regulate" in the Constitution, in order to prove that regulation is distinct from prohibition. But then, you suggested that regulation is distinct from prohibition when it comes to commerce among the states, but not when it comes to commerce with foreign nations. This seems to undermine the textual argument.

Of course, the idea that the foreign commerce provision and interstate commerce provision have different purposes is an entirely separate argument.

[A18]

I of course did no such thing. I pointed to other instances of the word "regulate" in the Constitution, in order to show that regulation can be separate from prohibition, and indeed, most often is.

Whether the power to regulate includes the power to prohibit depends on the evident purpose of the grant of power.