Category Archives: Teh Commerz Clawz

Teh Commerz Clawz: NLRB v. Jones & Laughlin Steel Corp

A belated Happy New Year to all! After a wonderful 5 day weekend, in which there was much drinking and debauchery, I am back to work and back to blogging, and can’t wait to start a whole new year of law, politics, and journalism!

So without further ado, welcome to Teh Commerz Clawz: National Labor Relations Board v. Jones & Laughlin Steel Company, which fittingly marks the turning point in the history of Commerz Clawz interpretation, and begins the start of the Major Expansion Era of the Teh Commerz Clawz.

bored lolcat

(How I imagine most ppl feel about law.) It gets moar interestin soon, I promiz!

So if you remember from last time, we’ve established some precedent for what commerce is prior to 1937:


1. Commerce is only goods moving in interstate commerce. There is a stream of commerce (Swift) with both a beginning (Schechter) and an end (Carter.) If goods have not yet started shipping or have reached their final destination, the federal government can’t touch them. This also applies to rules that attempt to set minimum wage or other requirements based on the Commerz Clawz.

2. There are things that have direct and indirect effects on commerz. Things like manufacshuring and wages only have an “indirect” effect on commerce, and so can’t be regulated. Things like stockyards, even though nothing is directly sold there, are so much a part of the streem of commerz that they fall under govt control.

3. Manufacshuring is not commerz.  It comes before commerz, and leads to it,  but is not a part of it (E.C. Knight.)

Now I know that’s all realllly boring, but to understand why Jones & Laughlin is so full of impoartant, you have to remember what came first. Also, remember that the last two cases were trying to regulate economic evils that led to the Great Depression. Roosevelt (FDR, not Theodore) kept trying to pass laws for things like minimum wage and health codes, and failing.

At this point, teh Supreme Court had set themselves up as a kind of super-majority. If things didn’t go along with their laissez-faire philosophy, they’d shoot the law down quicker than you can say “bread line.” Which was fine with big business, not so fine with starving people who wanted living wages and food.

fdr court packing plan

See? No onez happie.

After a couple years of this, FDR was really, really mad. He just couldn’t seem to beat Teh 4 Horsemen, who could usually find one justice willing to join them for a majority. So he came up with an idea. Instead of waiting for the Court to come around, he was going to add moar juztices instead. Tons moar juztices.

The general idea was that any juztice over the age of 70 would lead to a new seat on the Court, up to six new seats at any given time. At that point, 6 of the justices were over 70 years old, including all of teh 4 Horsemen. Though Roosevelt said he was trying to create less work for an overstaffed judiciary, everyone knew better. FDR merely wanted enough ppl supportive of Teh New Deal on the Court that they’d quit overturning all his laws.  No one was very happy about it. Matter of fact, it was a big enough deal to be the subject of the first fireside chat of Roosevelt’s second term.

Congress and FDR fought about this for a while, 6 whole months in fact, and then suddenly, Juztice Owen Roberts switched sides. It’s called “the switch in time that saved nine.”

So remember all those things we just talked about? About how manufacshuring and commerz aren’t teh same? How manufacshuring and wages only count as having an indirect effect?

Enter National Labor Relations Board v. Jones & Laughlin Steel Corporation.

FDR set up the NLRB in to help workers get bettah wages, primarily in the form of being able to “collectively bargain,” or rather, the right to not be kicked out of your job for joining a union.

NLRB: Strikes affect commerz. If workrs get mad at companys and no work happenz, then that “restricts the free flow of commerce.” Iz bad, and we can regulate it. U must b good to workrs nao. We haz precedent.  (Not discussed here, but the case is Stafford v. Wallace, which is also states the stream of commerce doctrine.)

Jones & Laughlin, one of the biggest steel companies in the country, was sued for discriminating against union workers, and, as usual, instead of just treating their workers better, Jones & Laughlin complained about it.

J&L: No! Manufacshuring iz not commerz, and wages and labor relations izn’t either. U said so alredy. Duh. Screw off, FDR.

All the lower courts agreed with J&L. Obviously, this had already been settled before. But when the NLRB appealed to the Supreme Court, something funny happened. Union Kitteh shall explain:

union cat

Da Ali iz 2 lazee to design her own lolcatz today. Thanks!

“So, suddenly, dings changed. Straight up, yo. Teh Court didn’t agree wit teh big business no moar. Instead, teh majority turned all teh way around and agreed wit FDR’s stuffs. All of a sudden, FDR and Congrez gets 2 say what commerz iz, not the Court.

“Chief Juztice Hughes used teh bill written by Congrez, which said that “commerce means trade, traffic, commerce, transportation or communication among the several states…or between points in the same state…” and that dings that affect commerz can includez “tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.”

“Normally, dat would no be right. But the court agreed with that definishun! Hughes then reminded ppl that teh right to organize iz an essential right, and that teh govt haz teh right 2 safeguard it. Iz not interfering in statez rights.

“Third, teh Court saiz that manufacshuring iz nao so cloze to commerz that the 2 can be regulated together. “Although activities may be interstate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens or obstructions, Congress cannot be denied that power….”

“Last, obviously, if steel work stopped, that would haz a ginormous impact on teh economy and on teh commerz, and becuz of that, unions are part of commerz and can b regulated. Iz not teh same as E.C. Knight.”

So, in case you hadn’t noticed, a few things changed here. (The 4 Horsemen noticed too. Their dissent can basically be summed up in two words, “Dudes, WTF?”) Suddenly Congress can regulate manufacturing, and wages. The stream of commerce idea is practically done. So now what happens?

Well, a couple different things. In our next case, Wickard v. Filburn, we find the lowest lows of the court’s wishy-washy nature. Then, things go back to normal a little more in the New Federalism Era, which started somewhere around Rehnquist (70s or 80s). Only 4 more cases! We’re almost there!


Teh Commerz Clawz: Carter v. Carter Coal

Hello again everyone!

lolcat quit

If writinz waz cough medicine, that'd be mee.

After a very long hiatus where I think I passed all my finals and such, I am now finally back and ready to finish this giant project I started back in the day called Teh Commerz Clawz, where I explain the precedent to the states’ challenge to the health care bill in super simple speak. Also with lolcats.

I have to admit I almost dropped this project. But then a Virginia judge ruled that the individual mandate is unconstitutional and that the federal government is quite possibly overstepping their Commerz Clawz boundaries. So I decided a) quitting is for quitters, and b) this is honestly too much fun to stop now.

When we left off, we were talking about the end of a “stream of commerce.” In Swift and Co., the court came up with the idea of the stream of commerce doctrine. If something is part of this stream of commerce, even if it seems like intrastate commerce, Congress can regulate it. In Schechter, the court decided that once things, even sick chickz, quit moving, they’re no longer part of the stream of commerce. In Carter, the Court decides where the stream of commerz starts.

So, if you remember, the Court and Roosevelt were embroiled in a royal battle of laissez-faire economics vs. (in my opinion) needed common sense. The Court kept striking down New Deal packages, which made Roosevelt and most of the starving country pretty mad, but was pretty awesome for big business.

hard luck kittehs

We can haz warmth nao?

Right after Schechter, Roosevelt passed the Bituminous Coal Conservation Act, which established a commission to watch over the coal industry. It was paid for with a mine tax, and if the mines complied, they got 90% of the tax waived.  Carter challenged this, suing his own company to say they shouldn’t pay the tax because the law was a violation of Teh Commerz Clawz.

Carter: This tax iz unconztitushunal. ‘Member Knight? Manufacshuring iz not commerz! This iz 4 da states onli, not 4 teh federal government. Iz not a direct effect, onli an indirect one. U said so alreadyz!

US govt: No! Iz not! We iz not onli regulating coal manufacshuring, but labor too. Wages r important, and big busness onli cares cuz they can haz moar monies when they don’t pay workers good. This law allows 4 unions and wage negotiations, and this directly affects commerz. Besides, if there iz doubt about if something iz commerz or not, teh Court should rule for us, not against us.

Teh Court was pretty split, but in the end the 4 Horsemen plus Juztice Roberts ruled for Carter. A 1930s lol-scribe shall explain.

kitten writing

Old lol-cats r 2 cute!

Lol-scribe: “We haz already told u in Knight dat manufacshuring iz not commerz. Coal iz not interstate commerz, because it haz not started moving yet. Just cuz somethin will evenshually be sold, does not maek it commerz nao. Teh coal has not entered teh streem of commerz, but instead iz at the head, before it begins.”

US Govt: That’s not all we iz doing, tho! Unfair wages affect commerz lotz. When ppl don’t get paid fair, then teh company can haz lower prices, and that affects interstate commerz. So iz commerz after all.”

Lol-scribe: “Nope. U iz wrong. Iz all interstate commerz. Juztice Sutherland saiz “Working conditions are obviously local conditions…Such effect as they may have on commerce, however extensive it may be, is secondary and indirect.” Teh onli difference between this case and teh sick chickz case iz that while one was after teh streem ended, this one iz be4 it begins. U still lose.”

So now we know. There is a start and an end to the stream of commerce. Also, anything that only indirectly affects commerce doesn’t count. It has to be obviously in transit between states to be interstate commerce, or be such a big part of it that it doesn’t matter if the transaction was intrastate.

But, you’re saying, that can’t be right! Teh Commerz Clawz is now used to regulate things like medical marijuana within a state. It’s used for tons and tons of things! What happened?

Stay tuned for Jones and Laughlin Steel, coming soon, and find out exactly how President Roosevelt convinced the Court it was time to stop making the Great Depression worse… (Also, we’re only a few cases away from explaining enough precedent to understand this health care bill challenge! Its proof of how much of a geek I am that I’m almost sad to be getting close to the end.)

Also, all old lol-cats were created by a guy named Harry Whittier Frees, who was actually pretty cool. Check it out.

Teh Commerz Clawz: A.L.A. Schechter Poultry Co v. US

Om nom nom!

Welcome back to Teh Commerz Clawz, where I explain the precedent to the states’ challenge of the Health Care Bill in super simple speak. Also usually with lolcatz. Because boring law is far more entertaining when there are cute kitties saying silly things.

If you remember, when we left off last week, we were talking about how teh lolcows in Swift v. US established that there is this thing called a “stream of commerce.” This stream means that if things in intrastate commerz are part of the stream of commerz running through the states, like cows stopping at a stockyard, then they count as interstate commerz. But, now the question becomes, where does that stream stop and start?

I actually put off talking about this case until long enough after Thanksgiving that I could stomach it again. Literally. (Anyone who has read Upton Sinclair’s The Jungle knows what I’m talking about.)

This case places us square in the middle of the Great Depression. FDR passed a bunch of laws meant to turn around the failing economy, including laws on wages, fair trading procedures, unions, etc. Big business wasn’t happy about it.

Roosevelt: Teh country iz dieing. I will regulate all teh shizz, and so no onez will be hurt any moar! Yay!
Big business: No! You canz no do that! Iz bad for business! Iz too much powr for u! U iz only Prezident, u can no taek all teh powr 4 urself!

What loyality to laissez-faire economics looked like in the Great Depression

Matter of fact, the Supreme Court wasn’t either. They kept striking down piece after piece after piece of Roosevelt’s New Deal.

Supreme Court: No! We liek teh laissez-faire economicz! We thinkz u iz trying to taek 2 much powr for u! We will taek away all ur bills! No bills 4 u!

Enough that at one point FDR tried to implement his famous court packing plan, leading to the saying “the switch in time that saved nine.” Thankfully, Justice Roberts changed his mind last minute, but point is, the Supreme Court and FDR were not buddies for quite a while.

In the fight leading up to the court packing plan, enter A.L.A Schechter Poultry Corp v. US.

Roosevelt passed this bill called the National Industrial Recovery Act. In it, he regulated the sale of sick chickens. See, people liked to sell sick chickens to butchers for the regular price, then people would eat them and get sick while other people still made a ton of money. Not so good, right? Besides, who wants to eat a sick chicken? Gross.

The law also did other things like regulating working wages and setting prices for things. People didn’t like that either. Too much government intervention and socialism and such (sound familiar?) But anyway, Schechter got charged with, among other things, “sale to a butcher of an unfit chicken.”

Schechter decided to take the government to court over it instead of paying the fines. Schechter held that NIRA was unconstitutional, in part because it overextended the powers of teh Commerz Clawz.

Schechter: I onli sellz mah chickens to intrastate ppls, and I onli buy mah chickens frum intrastate ppl. There iz no interstate commerz. Congress and teh Prez can no regulate this. Iz onli for teh states, iz not part of teh streem of commerz!
U.S.: This haz a direct effect on commerz. Ppl being sick affects commerz. Bad business practices affect commerz. So we can haz regulation, yo!

supreme court justices with cat heads

Om nom nomz!

Teh Supreme Court agreed with Schechter. If you remember last time, we were talking about how while there’s a stream of commerce, at some point there’s a beginning and an end to every stream. Teh Court held that the sick chicks are at the end of the stream.

Juztice Sutherland (evil wolf kitteh at right): “When defendants had made their purchases, whether at the West Washington Market in New York City or at the railroad terminals serving the City, or elsewhere, the poultry was trucked to their slaughterhouses in Brooklyn… The interstate transactions in relation to that poultry then ended.” Basically, when teh chickenz reached New Yoahk, they were onli soldz in New Yoahk. No moar interstate commerz.

This means that there iz no way teh govt can argue this iz interstate commerz. We kno it when we seez it, and this iz not it. “The mere fact that there may be a constant flow of commodities into a State does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the State and is there held solely for local disposition and use.” After something goez into teh state, and iz not leaving again, then it iz not interstate commerz. Teh end.

U.S.: NO! Iz not teh end! These practices affect interstate commerz! Iz bad for business and for eberything!

Juztice Sutherland: Rong! Member? We toldz u b4! Some things haz a direct effect on interstate commerz. You can haz regulation of that. But sick chickz onli has an indirect effect on commerz. Even if this iz bad for business, that is for teh state to taek care of. Iz no for you. Go ‘way!

So now we’ve established that not only is there a stream of commerce, but it has a definite end. Once something is not going back out of the state to be sold, it’s then part of intrastate commerce. Tomorrow, or the next day depending on my schedule with finals coming up, we shall discover where this stream of commerce starts! (There’s more that goes into these challenges than you thought, isn’t there?)



Teh Commerz Clawz: Swift and Co v. US

Welcome to the third installment of Teh Commerz Clawz, where I explain the precedent to the state’s challenge to the health care bill in super simple speak. Also with lolcats. And today, lolcows.

cow picture

Mooovin the stockyardz. Thanks to for the pic.

Today’s episode deals with cows. Lotz and lotz and lotz of cows. And some railroads too. And some people. But mostly, a lot of cows, where they go, and why teh federal government had a beef with monopolies.

So when we left yesterday, we’d determined from Gibbons and E.C. Knight that there are limits to what the national government can control through teh Commerz Clawz. For example, manufacturing is not commerce, and so is regulated through state “police powers” instead. (BTW, if this police powerz thing has you a bit confused, it does everyone. There’s really no hard and fast line for what’s a state and what’s a federal police power. Don’t sweat it.)

Swift and Co. v. US also concerns monopolies, just like yesterday. In this one however, instead of nummy shoogar, we haz stockyards in Chicago wreaking havoc. (Though, come on, what else can you expect from good old Illinois, right Mr. Blagojevich?) Basically, the way the meat industry worked, and still kinda does, went something like this. Farmers raise cows. Farmers bring and sell cows to stockyards. Companies would purchase the cows from the stockyards, slaughter them, and then sell the meat to local stores in the area. Pretty simple, and everyone makes money right?

Theodore Roosevelt cartoon

Teddy Roosevelt was so awesome he killed trust bears all by himzelf! Also, old cartoons rock.

Except Swift and Co. controlled about 60% of the fresh meat market, and they weren’t doing it honestly. They made agreements with other meat houses for what prices would be so there wasn’t any real competition, and thus set artificial prices for everything. The farmers made less money for their meat, which sucks considering the cows had to transported sometimes thousands of miles on railroads. The meat monopoly men manhandled the railroads into charging them artificially low rates for transporting these cows.

So nobody was making a bunch of money except for Swift and Co.

When the government found out about it, they were obviously very pissed off about it.

Fed govt: No! We haz tell u already! No monopolies. Ur buisness practises r bad! We sue u!
Swift: Iz not interstate commerz. Our stockyards r liek 3 miles frum our slaughterhauses and stuff. Plus, how were we spossed to kno? Teh Sherman Act iz too vague 4 anyone 2 use.

Now, when the Sherman Act went into effect, President Grover Cleveland and the Court that decided E.C. Knight believed that monopolies were part of progress, and so the Sherman Act was actually really vague. One of the main ideas behind laws is that if they’re too vague for people to know what they can or cannot do, or cover too much, then they’re no good and will be thrown out. So this was actually a great argument against the Sherman Act.  (This is why you can find so much porn on the Internet so easily. It’s so far been impossible for Congress to craft an easily implementable, concise law that isn’t so vague that it covers everything. More on that some other time.)

But in 1909, when this case was decided, Teddy Roosevelt and a more “liberal” court were in power, and people were starting to realize what a pain in the butt monopolies actually are. Case in point: Swift and Co.

But since most of their operations are only in a few states, would that make it interstate? Remember, in E.C. Knight, the Supreme Court didn’t let that one slide.

Justice Holmes had a ginormous moustache

Antique Kitteh has the day off. Love Baby Kitteh instead!

A new Supreme Court Kitteh shall explain:

“So, Swift saiz dat since all teh company commerz happens in teh same state, kinda, dat he iz not part of interstate commerz. BUT!

“In E.C. Knight we tellz u about teh concept of “direct” v. indirect effect on commerz. Manufacturing haz an indirect effect on commerz. But dis iz a diffurent storeh. Why? Cuz teh monopolies deal in buying and selling tings, and dat effect on commerz iz not “not accidental, secondary, or remote,” but iz very purposeful. Swift iz tryin 2 control prices by cheating ppl. Dis iz a verry direct effect.

When dey taeks da cows frum 1 state, and send dem somewhere else in a diffurent state, and da stockyardz iz inbetween, and dis happens all teh time, then it iz interstate commerce.

Teh Court iz going to taek this 1 step moar. They tink there iz a stream of commerz, and that tings affecting that stream can haz regulationz. “When this is a typical constantly recurring course, [like with the stockyards, Ali note] the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part . . . of such commerce.””

So now we have this idea of a “stream of commerce.” When things go from one place to another, just because something happens in a state that stops the goods for a bit, doesn’t mean that part is out of the flow. It’s like a river. Everything from where that river starts to where it stops is part of the river. No quibbling allowed.

But then there are moar probz. What counts as the start of this stream? What if the stuff is only on the banks so to speak? When does it complete this trip?

All that and moar in Friday’s installment of Teh Commerz Clawz, when we learn about sick chickens and Teh Grate Depreshun. (Not to be confused with the current “Great Recession.” Ugh.)

Teh Commerz Clawz: US V. E.C. Knight

us v. e.c. knightIn response to the overwhelming support for teh first installment of Teh Commerz Clawz (amount of page reads only topped by my election coverage! Yay!) we shall continue today with the case of US v. E.C. Knight.

There are, according to my lovely Constitutional Law TA Leticia (she iz teh shizz fo sho), 3 phases to the Supreme Court’s interpretation of the Commerz Clawz. The first, exemplified by Gibbons v. Ogden, is the Defining Phase. It ran from 1789-1835, and was basically just full of the Court figuring out wtf teh Commerrz Clawz means in the first place. Like figuring out what the rules of college are after years of public schooling where someone else told you what to do all the time.

With E.C. Knight, we now enter the second phase, The Laissez-Faire Era, where the Court and the federal government fight a lot about teh Commerz Clawz and the balance between the rights of states to regulate their own commerce under the 10th Amendment (Chief Justice Fuller and mah kitteh shall explain) and the right of the national government to regulate interstate commerce for the wellbeing of everyone involved.

kitteh and sugar

I no liek shoogar. Me no care about no silleh monopolies!

This case involves the favorite drug of hyperactive children everywhere… No, not adderal. That’s college kids. I’m talking about plain old-fashioned, awesome…shoogar.

So, in the Industrial Revolution age, when people were finally figuring out how to mass produce things, lots of businesses liked to get together and create monopolies. Made them tonz moar money, because they could set all the prices.  The federal government realized that that was bad for business and bad for the people, so they decided to do something about it.

Federal government in 1890: No! Bad companiez! We maek teh Sherman Anti-Trust Act with our awesome Commerz Clawz powrs!. Nao u no can haz monopoly. Iz bad for America. Free trade rulez!

But E.C. Knight Co. didn’t care, and decided to merge with American Sugar and create a ridiculously huge monopoly.

American Sugar Stock

American Sugar Stock

E.C Knight Co.: We do no care! We maek monopoly! Manufacshuring iz not commerz! U can no regulate us! We control 98% of all teh shoogar in teh WHOOOOOOOOOOLE United Statez! We setz all teh prices! We maeks tonz and tonz of monies! Yay!
Federal govt: Yes, we can! Teh Sherman Anti-Trust Act saiz so! Bad company! We sue u!
E.C. Knight: Noez! Teh Sherman Anti-Trust Act iz unconstitushunal! Besides, we tell u already! Manufacshuring iz not commerz!

E.C. Knight argued that the Sherman Anti-Trust Act violated the powers of teh Commerz Clawz, and also that since manufacturing and commerce are separate parts of industry, the Sherman Anti-Trust Act couldn’t apply to them.

Now, in the age we now live in, that may not make much sense. Obviously, if sugar is manufactured and then sold, it’s part of commerce, right? At least the abilities of American Sugar to control the prices should be part of commerce. But according to the Fuller Court, it’s not quite so simple. And remember, there’s not a lot of precedent. We’ve only been a country for about 100 years, and we only just now discovered industrialization. On top of that, we looooooove the idea of a laissez-faire economy.

Mah kitteh Zipper has been hanging out with Chief Justice Fuller recently and shall explain further:

Supreme Court Justice Fuller with a kitteh!

Chief Justice Fuller lieks monopolies! Zipper lieks monopolies on teh foodz going 2 him and not 2 Zophie.

“So, we already kno frum Gibbons v. Ogden dat commerz haz rules for what Congrez can regulate. It can regulate teh ‘intercourse’ between da statez. But, E.C. Knight saiz that they iz not in commerz. They only do manufacshuring, which happens b4 commerz and iz not part of it.

“Chief Justice Fuller agrees. Him saiz “Commerce succeeds to manufacture, and is not a part of it…The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce…”

“Him iz worried about the sovereignty of teh states to keep control of their ‘police powerz.’ Police powers iz teh power of the statez to regulate within their borders for the health and wellbeingz of their citizenz, and dat balance between “the independence of the commercial power and the police power, and the delimitation between them…must always be recognized and observed.”

Fuller saiz dat teh effect of Knight’s monopoly iz an “indirect effect” on commerz. It iz up to teh statez to regulate this. Teh national Congrez can no do it.”

So, here we see the beginning of the understanding of the Commerce Clause that takes us through to after the Great Depression. Though it evolves, as we shall see the rest of this week, the general idea is that some activity has a direct effect on interstate commerce, for example, transporting sugar from one state to another. Other activity, such as the actual manufacture of sugar in one state for later transport to another, does not. And an indirect effect is not enough to give Congress any power.

Remember also, that intrastate commerce, like sugar being sold in a store in one state, is also not under the regulation of commerce, and instead falls under state police powers.

Business wins! Government loses! But will it stay that way? Only time and moar lolcatz will tell!


Mah kitteh Zipper has been hanging out with Chief Justice Fuller recently and shall explain further:

Supreme Court Justice Fuller with a kitteh!

Chief Justice Fuller lieks monopolies! Zipper lieks monopolies on teh foodz going 2 him and not 2 Zophie.

“So, we already kno frum Gibbons v. Ogden dat commerz haz rules for what Congrez can regulate. It can regulate teh ‘intercourse’ between da statez. But, E.C. Knight saiz that they iz not in commerz. They only do manufacshuring, which happens b4 commerz and iz not part of it.

Teh Commerz Clawz: Gibbons v. Ogden

Yeah, I lose. This did not go up yesterday. I plead feverishness and too much lemon honey tea.

i tell. you listen nao

Zophie tells it like it is, yo!

Welcome to the first official installment of Teh Commerz Clawz, where I explain, incrementally, the cases that form the precedent for the current challenge to HR 3962 Affordable Health Care for America Act, and then explain the decision that allows the states to continue challenging the bill. In super simple language. Possibly in LOLspeak as well. Because it sounds like fun.


So to begin:

As many as you might know, when the Constitution was established, teh Statez haz probs. Lotz an lotz. The Articles of Confederation weren’t doing a whole lot. For example, every state could trade with every other state, but also every other country. They could print their own monies. No one was there to force them to pay debts to each other or the people. Obviously, not so good.

Courtesy of

But when the founders got together to draft Teh Conztitushun, they didn’t want to have the same problems they had back in England. So they had to make sure there was a balance between state power and federal power. They decided they would give the national government the power to make money, draft treaties with other countries, and to regulate “Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

This allowed the national government enough control to make sure that there wasn’t a lot of division and that people got paid on time, and also allowed the states enough power so the national government didn’t do this:

kitty squishing mouse

I crusch statez wit mah mightie nashunal governmentz pawz! Courtesy of Discover Magazine

In the very beginning, the national government gave most Commerz Clawz powers to the states, including allowing states to effectively create monopolies by granting limited amounts of licenses or entering into agreements with private individuals for control of various roads and waterways, etc.


gibbons v. ogden

Gibbons v. Ogden

Enter Gibbon v. Ogden, which was the first Commerz Clawz case and thus super, super important:

In 1798, dude named Livingston gets a monopoly from the state of New York to operate steamboats.
Livingston: I can haz mon0poly?
State Legislature: Okie! You haz no funcshuning steamboat anywayz.

However, by 1813, Livingston was dead, but the steamboats were up and running quite well. So was the monopoly. Other states like New Joysey were getting super pissed, and Livingston’s successors, Ogden and Gibbons, were making tons and tons of money. Ogden had the NY monopoly on his side, and Gibbons had permission from the federal government to run his boats along the coast. But then Gibbons and Ogden broke up.

New York Monopoly Holders: U must end teh partnership wit Gibbons. Him iz stupid. Moar money!
Ogden:  Okie. MOAR MONEY!
Ogden to NY Courts: Makes him stop! Iz mah watr. U said so!
NY Courts: Gibbons! No NY watr 4 u! We gived it 2 Ogden. U no can haz watr.

Gibbons was obviously very mad about this. The federal government had already said that he could operate his boats all along the coast. That should include New York, no matter the stupid monopoly. So he took his case to the US Supreme Court.

Gibbons: Federal government haz power over watr. New York no can haz power. Watr is important, and is a nashunal issue. Watr not just 4 statez.
Ogden: This iz a state power 2! Regulashun of navigashun waz not granted to Congrez! 10th Amendment rulez over u! Besides, iz not commerz, iz trade instead! U cannot regulate trade! Only statez can!

In case you couldn’t tell, the relevant part of the Commerz Clawz is “among the several States.” But what is “Commerce?” What does “Among” mean? Supreme Court Kitteh will explain.

Supreme Court Kitteh knows all! (Oldest LOLcat in recorded history)

SC Kitteh: “So, we haz some very important questions to answer today. First, what is commerz? Gibbons says it iz only buying and selling of tings. We disagree. Commerz iz trafficking of goods, but it is also “intercourse.” Not like sex, u nazty ppl. NO! It iz “the commercial intercourse between nations, and parts of nations, in all its branches.” So obviously, navigashun is part of the intercourse of commerz. Gibbonz is wrong. Get it? No? Let us explain moar.

“Second, “among means intermingled with…Commerce does not stop at the external boundary lines of each State.” So, if you buy a steamboat ticket 4 a ride frum New York 2 Florida, cuz FL iz warm and NY iz 2 cold 4 whiney u, then even though that commerz started in New York, it iz interstate commerz because the end result is interstate commerz. Ok?

“Third, “can a State regulate commerce with foreign nations and among the States, while Congress is regulating it?” Yes. No probs. We kno statez can haz laws 2. But…

“Fourth, if a law frum teh Statez conflicts wit a federal law, Teh Conztitushun says that the federal law wins. Hands down. No argument.”

So to recap: Commerce is more than buying and selling things. Interstate commerce can reach inside a state. States can regulate shizz too, but only if it doesn’t interfere with federal laws.

New York’s monopoly goes against Gibbon’s federal permit, so according to points three and four, the state law loses. Monopoly over! Gibbons can haz water 2! Yay!

These definitions become really important later on. Think about it. What counts as part of interstate commerce? What is only inside a state and so is “intrastate” commerce? Can the states regulate foreign commerce too? What if a state regulation expands on a federal regulation and so they’re kinda together and kinda not?

All this and more will be shown in later installments!

And that, ladies and gents, is Teh Commerz Clawz: Gibbons v. Ogden. If you want a fairly simple version without lolspeak check out this nice brief at