The Registry and the Commerce Clause

In addition to Brian's entry below about the inherent problems associated with a centralized 'solution' to unwanted telemarketing calls, there has been some thoughtful writing on the Constitutional legality of the Registry, specifically dealing with the Commerce Clause.

Radley Balko calls out blogosphere libertarians.

Julian Sanchez responds.

Aaron Haspel weighs in.

Jim Dow of Agoraphilia gives his opinion.

Although as Aaron states, it is difficult to ascribe a singular intent to any collective, a lot of the early writings tend to agree with Radley that the purpose of the clause was to prevent the individual states from engaging in trade wars. In Federalist 22, Hamilton wrote:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. "The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

And Madison stated:

I will venture to say that very great improvements, and very economical regulations, will be made. It will be a principal object to guard against smuggling, and such other attacks on the revenue as other nations are subject to. We are now obliged to defend against those lawless attempts; but, from the interfering regulations of different states, with little success. There are regulations in different states which are unfavorable to the inhabitants of other states, and which militate against the revenue. New York levies money from New Jersey by her imposts. In New Jersey, instead of cooperating with New York, the legislature favors violations on her regulations. This will not be the case when uniform regulations will be made.

Whatever the true intentions behind the clause were, it is one of the most centralizing phrases in the Constitution. Even if it was designed to prevent tariffs and duties among the several States, it is a flawed solution. If the States engage in trade wars, that is a problem of the people of the States, and the States need to change. Using the Federal remedy might temporarily ameliorate the problem, and only then in optimistic scenarios, but such power without fail will be abused. Sooner or later, the Federal power to promote free trade will (and many would say already has) morph into the power of the Federal government to intrude into every aspect of commerce at the local level.

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