Session16 by Wittgenstein


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									Session 16

Monday, 18 October 2010

The Taney Commerce Regime

Roger Brooke Taney

      Central believer in “Jacksonian-Era America.”
      Pro-slavery, racist
      Pro-agrarian ideology (anti-banks, anti-Hamilton)
      Second generation Jeffersonians
      Andrew Jackson’s Attorney General
      Pro States rights
      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
      Dred Scott (author)

Mayor of New York vs. Miln

      Vessels coming into NY had to provide a passenger list 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.
      The ship captains who bring them here charge fees. That is their business
       (think of it as a very long ferry ride.)

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

What does the rule of law say?

      Gibbons says this is interstate commerce
      Taney rules in favor of NY
      Intended as a police power, not a regulation of commerce
      Federal government has everything given by the constitution, states have
       everything not given (including the natural right to police for health and
      So long as it does not conflict with a federal statute, it is ok
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.”

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, and an incident of police.

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. 2nd. Because it is not expressly granted to Congress.

Federal government: everything given by the Constitution

States: everything NOT given to the Feds in the Constitution, Including the natural
right to police for health and safety

How can this be reconciled with the exclusivity premise? How is this case factually
different from Gibbons?

       No conflict with a federal statute

The Rise of the Dormant Commerce Power

License Cases

      A state passed a law that said, before you sell liquor, you need a license
      Held: the states can do this
      No federal law contradicts
      This is purely a 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 don 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 to over the same subject by the
States.”     -Taney

Cooley vs. Board of Wardens

      Ships had to use a local pilot when sailing into Philadelphia
      The paying of a local pilot increases the cost of the business. It makes
       ferrying less profitable

The Pennsylvania Law:

        A PA 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 retired 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.

What does the rule of law say?

      Holding: the law is fine, because:
      Exclusivity only extends to those situation where uniformity is required
      If uniformity is not required, states now get to regulate commerce too
      Marshall’s exclusivity premise is now dead

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 divers 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” –Wilson]

Legal Point

      There is now something called the “dormant commerce clause.”
      States can regulate even the INTERSTATE economy in the absence of federal

Conceptualizing Taney’s Approach

Federal government: everything given by the Constitution

States: everything NOT given to the Feds in the Constitution, the natural right to
police for health and safety, regulating commerce when “big brother” is not

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