Resolved: This House would overturn United States v Darby(1941)

"While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed."[8]

"In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states *and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."[8]

"interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows."[9]

"According to Justice Thomas, "at the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." He also cited the etymology of the word, which literally means "with merchandise." He then noted that "when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably." The term "commerce," according to Justice Thomas, "was used in contradistinction to productive activities such as manufacturing and agriculture."...activity. In cases such as United States v E.C. Knight Co, the Court distinguished "commerce" from manufacturing or agriculture, and held that the regulation of either manufacturing or agriculture exceeded the powers of Congress under the clause."[8]

• Banned oppressive child labor
  
• Established overtime
  
• Established that employees under the age of 18 could not do dangerous tasks
  
• Established that children under the age of 16 cannot work during school hours
  

the distinction between manufacturing goods and engaging in interstate commerce was no longer useful, since most companies produce their goods without considering where they may travel. Moreover, Congress was justifying in seeking to prevent a race to the bottom among states, which might attempt to produce goods as cheaply as possible by exploiting workers. This practice likely would have an effect on interstate commerce, so Congress could regulate it under the Commerce Clause. Moreover, the record-keeping requirements and potential penalties imposed by the Act were not arbitrary or irrational.

While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce, and the prohibition of such shipment by Congress is a regulation of interstate commerce.

Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the States of destination, and is valid unless prohibited by other Constitutional provisions 

The power of Congress over interstate commerce extends to those intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make their regulation an appropriate means to the attainment of a legitimate end -- the exercise of the granted power of Congress to regulate interstate commerce.

In the more than a century which has elapsed since the decision of Gibbons v. Ogden (1824), these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart (1918). . . . In that case it was held by a bare majority of the Court over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved, that Congress was without power to exclude the products of child labor from interstate commerce. The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution.
...

The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled.

The two principal questions raised by the record in this case are,

• first, whether Congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours of labor at that wage are greater than a prescribed maximum, and,
  
• second, whether it has power to prohibit the employment of workmen in the production of goods "for interstate commerce" at other than prescribed wages and hours.
  

• A subsidiary question is whether, in connection with such prohibitions, Congress can require the employer subject to them to keep records showing the hours worked each day and week by each of his employees including those engaged "in the production and manufacture of goods, to-wit, lumber, for interstate commerce.'"[1]
  

It has been truly said that "commerce," as the word is used in the Constitution, is a unit every part of which is indicated by the term.If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.[2]

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution[2]

Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities and incidental means belonging to the power over foreign commerce, as is unavoidable.

In other words, the use of tariffs and other forms of "prohibitory regulations", the term itself a concession to the normal meaning of "regulation"--while necessary to effectuate the purposes of the power to regulate commerce with foreign nations, would fly in the face of the purpose for regulating commerce among the states.[4]

Apart from the Commerce Clause, the terms "regulate" or "regulation" appear seven other times in the body of the Constitution and three times in the amendments proposed by Congress to the states, though only once in the Bill of Rights as ratified. The term "prohibit" is used once in the body of the Constitution and twice in the Bill of Rights.

• Article I, Section 4 gives Congress the power to "alter such Regulations"185 on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them.
  
• Article I, Section 8 gives Congress the power "to . . . regulate the Value" of money, not to prohibit the use of money or to "regulate" its value to zero. 
  

 In two places the Constitution makes an explicit distinction between prohibition and regulation. Article III, Section 2 gives the Supreme Court appellate jurisdiction, both as to law and fact, "with such Exceptions, and under such Regulations as the Congress shall make."

By distinguishing "exceptions" from "regulations," the Constitution distinguished Congress's power to regulate or subject to rule the Court's appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making "exceptions" thereto. If the power to make regulations included the power to prohibit that which is regulated, there would have been no need to give explicit power to Congress to make "exceptions" to appellate jurisdiction.[4]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[5]

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851. 

Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself. A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas. 

....

Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. But originalism forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome.

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[5]

Validity of the wage and hour provisions under the Fifth Amendment. Both provisions are minimum wage requirements compelling the payment of a minimum standard wage with a prescribed increased wage for overtime of 'not less than one and one-half times the regular rate' at which the worker is employed. Since our decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578, 108 A.L.R. 1330, it is no longer open to question that the fixing of a minimum wage is within the legislative power and that the bare fact of its exercise is not a denial of due process under the Fifth more than under the Fourteenth Amendment. Nor is it any longer open to question that it is within the legislative power to fix maximum hours. Holden v. Hardy, 169 U.S. 366 , 18 S.Ct. 383; Muller v. Oregon, 208 U.S. 412 , 28 S.Ct. 324, 13 Ann.Cas. 957; Bunting v. Oregon, infra; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, supra. Similarly the statute is not objectionable because applied alike to both men and women. Cf. Bunting v. Oregon, 243 U.S. 426 , 37 S.Ct. 435, Ann.Cas.1918A, 1043.

these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart (1918). . . . In that case it was held by a bare majority of the Court over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved

It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid.

In each of these instances, the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended...

...This element is wanting in the present case... the goods shipped are, of themselves, harmless.

There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. Many causes may cooperate to give one State, by reason of local laws or conditions, an economic advantage over others. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions.

 A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas 

Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. But originalism forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent

I do contend, however, that the constitution is in dire need of a re-write

"It can be amended, but the amendment process is very difficult."

"Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself."

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."[6]

• the reading of the Commerce Clause in this case, and precedent itself is, simply put, false.
  
• the commerce clause does not generally afford the power to prohibit.
  
• "Unfair","injurious", or "imbalanced" advantages in commerce between states is not of concern to the Federal Government
  
• US v Darby was itself a tortured reading of precedent that overturned a ruling that was labeled what it in itself actually was.
  
• In light of Haynes V US, the record-keeping requirements tied to minimum wage and hours laws itself cannot be applied to those who are actually violating such laws, this making them effectively useless and arbitary
  
• Originalist interpretations, though flawed, are less flawed than proposed alternatives. Particularly when it comes to proper jurisprudence, impartiality, and adherence to founding principles and documents as outlined.
  
• Federal Government does not have the power to interfere with state and local police powers in regulation of commerce.