Yet another issue that caused confusion in pre-War Commerce Clause cases was the meaning of the term “commerce.” It pretty clearly included the shipment of goods. But did it also include the transit of passengers? The issue was particularly troublesome because the states repeatedly passed laws that (a) substantially impinged upon international passenger transit, but (b) were clearly motivated by legitimate “police” issues such as health and safety. (In this respect, they were something like my hypothetical in the last post, in which a state banned the importation of tobacco.) From time to time, some of the justices sought to cut this Gordian knot of conflicting considerations by suggesting that passenger travel was not “commerce.”New York v. Miln, which I mentioned in an earlier post, was such a case. There New York had passed a law imposing various obligations on ship captains bringing international passengers into the state. The motivation was to discourage taking in criminals and paupers who would become a public burden or threaten public safety. On the one hand, the law arguably “regulated” “commerce” (if passenger travel was commerce). On the other hand, it was generally accepted that states had the right to exclude undesirable immigrants altogether. Did not the greater power (total exclusion) necessarily include the lesser (imposing burdens)?
Although the case produced a range of opinions, it was actually less confusing than most Commerce Clause decisions of the period. As I noted before, in essence the court held that the state’s police powers prevailed over Commerce Clause considerations. Even if, or although, passenger travel was “commerce,” the state clearly had the police power to impose quarantine laws restricting immigration to protect public heath. Broadly viewed, the New York law was similarly designed to protect public safety and was thus a proper exercise of the police power, even though it affected international commerce.
Even so, the idea that passenger traffic was not really commerce at all was sometimes just so easy that the temptation was irresistible. For example, Justice Barbour’s opinion in Miln basically followed the reasoning described above. Nonetheless, he could not resist throwing in the irrelevant observation that passengers “are not the subject of commerce.” In short, the idea was never dispositive, but it popped up from time to time to bolster conclusions reached for other reasons. As a result, the concept was one of the confusing currents of contradictory considerations that churned through Commerce Clause opinions of the period. (And how’s that for alliteration?)
When we arrive (finally!) at Groves v. Slaughter, we will see this issue resurface to some degree in some of the opinions with additional overlays that generate even greater confusion: are slaves persons or goods (or both)? What is the source of their status, state law or the federal Constitution? Does it even matter?
As I hope this very brief and simplistic review has suggested, Commerce Clause law was a mess during this period. Individual opinions were often badly written and virtually incomprehensible. Most cases generated multiple opinions that employed different reasoning, making it impossible to identify which reasoning controlled (assuming you could understand it). Cases were often decided by narrow majorities, and as majorities shifted it was often difficult to reconcile results in different cases.
As a result, a justice writing an opinion could often justify any result and reasoning he desired. If you wanted to uphold a state law, emphasize lack of federal exclusivity and/or the breadth of state police power; point out (if applicable) that the federal government had not passed legislation concerning the subject; and (if applicable) suggest that passengers are not commerce. In the alternative, you could concede federal exclusivity but go on to endorse a police power exception that swallowed the rule.
If, on the other hand, you wanted to strike down a state law, pick one or more of the following: harp on federal exclusivity; emphasize that the subject matter demanded national uniformity; (if applicable) highlight the fact that the federal government had passed laws regulating the same subject matter; assert that the offending state law “really” represented a regulation of commerce and was not merely the exercise of a police power; and (if applicable) deny that passenger travel was excluded from the scope of the Commerce Clause.
In the following posts, I will actually get to the opinions in Groves (I promise!). Hopefully, the background I have tried to provide will reduce, or at least explain, the confusion we encounter. In the meantime, if you have any questions, I’m happy to try to answer them. If those of you already familiar with this area think my explanations incorrect, misleading or otherwise insufficient, fire away. I’m not proud.
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