Category Archives: Commerce Clause

Montana Brings A Gun (10th Amendment) To A Knife (Interstate Commerce) Fight

This could get interesting:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana.

Reading through the introduction to the bill, Montana directly claims that the 9th and 10th Amendments, the Montana state Constitution, and the fact that they are declaring all of this to be intrastate commerce removes them from federal regulation on firearms.

I’m not sure how this will stand up to the precedents of Filburn and Raich. Based on his concurring opinion in Raich, one may suspect that even Scalia (if he’s consistent) would strike down Montana’s statute:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez

Scalia just wrote the government’s argument in case they try to implement their will. They simply will claim that this intrastate activity substantially undercuts their ability to regulate firearms in interstate commerce.

Morally, I applaud the state of Montana for standing up for their Constitutional rights. Given modern Constitutional jurisprudence, though, I don’t have high hopes for their success.

Hat Tip: Billy Beck

Barack Obama Says The Constitution Is Flawed, And He’s Right

In what seems to be a follow-up to yesterday’s kerfuffle about Barack Obama’s comments about the Warren Court and redistribution of wealth, there’s now an audio clip of him from the same radio program discussing what he called a “fundamental flaw” in the Constitution:

I think it’s a remarkable document…

The original Constitution as well as the Civil War Amendments…but I think it is an imperfect document, and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time.

African-Americans were not — first of all they weren’t African-Americans — the Africans at the time were not considered as part of the polity that was of concern to the Framers. I think that as Richard said it was a ‘nagging problem’ in the same way that these days we might think of environmental issues, or some other problem where you have to balance cost-benefits, as opposed to seeing it as a moral problem involving persons of moral worth.

And in that sense, I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day, and that the Framers had that same blind spot. I don’t think the two views are contradictory, to say that it was a remarkable political document that paved the way for where we are now, and to say that it also reflected the fundamental flaw of this country that continues to this day.

Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

So, in that sense, <strong>Barack Obama is absolutely right when he says that the Constitution was “fundamentally flawed.”

And, you know what ? It still is.

For example, the Interstate Commerce Clause has been used to do far more than regulate commerce between the states. The Necessary and Proper Clause has been used to find powers for Congress and the President that exist nowhere in the Constitution. The Ninth and Tenth Amendments are, thanks largely to the vagueness of their language, largely unenforceable. Congress’s monetary powers have been ceded to an unelected Federal Reserve Board. And don’t even get me started about the flaws in some of the Amendments.

Right To Contract vs. “Human Rights”

Eugene Volokh writes about a case in New Mexico that demonstrates the extent to which the right to decide who you do business with has been eroded in the name of so-called anti-discrimination laws:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs.

I haven’t seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

As Volokh points out, photography is an art form and the Human Rights Commission decision effectively says that the state can tell you what kind of art you can and cannot create. He goes on to point out, correctly I think, that several U.S. Supreme Court opinions make it clear that the state cannot compel you to endorse points of view that you disagee with and, arguably, by photographing a committment ceremony she finds personally offensive, this photographer would be endorsing something she does not choose to endorse.

More than that, though, this case points out the extent to which so-called “economic” rights, such as the right to decide who you do business with, have been eroded over the past 50 years. There is no reason that Ms. Huguenin should be forced to take on a job she doesn’t want to take. What if, instead of citing the same-sex nature of the ceremony, she has simply said she was too busy to take on the project ? Presumably, that would have been a legitimate reason to turn it down, and if that’s the case, then I see no reason why she should be forced to work for these people just because she doesn’t approve of their lifestyle.

The Threat To Limited Government In 2008

The Cato Institute’s William Niskanen points out that limited government is unlikely to fare well regardless of who’s elected in November:

An administration and Congress of either party is likely to approve a federal program of universal health insurance. Such a program was endorsed by most of the presidential candidates in both parties, was implemented by former Gov. Mitt Romney in Massachusetts, and has been promoted even by our friends at the Heritage Foundation — despite the prospect that it would substantially increase federal spending, the relative price of medical care, and both price controls and nonprice rationing of medical care. The failure of any presidential candidate or more than a few members of Congress to criticize the $150 billion debtfinanced “stimulus” package as ineffective or possibly counterproductive suggests that there is a broad bipartisan indifference to responsible fiscal policy. Another major threat to limited government that will probably be approved next year, whatever the outcome of the November election, is a first-stage national commitment to reducing the emissions of greenhouse gases; this ineffective but potentially very expensive policy is being promoted as a moral obligation, rather than the best of the alternative feasible responses to global warming.

Each of these would, of course, vastly increase the size, scope, and power of the Federal Government and none of the remaining three candidates who will occupy the White House on January 20, 2009 has pledged to eliminate or even reduce a single federal spending program.

The logic of what we’re likely to face in the future is summed up here:

Bruce Katz, director of the metropolitan policy program at the Brookings Institution, has claimed that “Chicagoland [and other major metropolitan areas] simply [do] not have the power or resources to achieve meaningful reforms to metroscale problems such as crushing traffic gridlock and inadequate work force housing on [their] own. . . . The federal government has a powerful role to play in helping metros address these and other issues — through smart investments, market-shaping information and environment-strengthening regulation. This potential is not being realized, since for too long the federal government has been strangely adrift and unresponsive to the dynamic forces at play in our country.”

Odd — with all these skills and resources, one might think that the federal government would already have solved the major problems of the programs for which it has a clear constitutional responsibility.

You might think that, but you’d be wrong.

Can The Government Force You To Reveal A Password ?

That’s the interesting legal question posed by a case out of Vermont:

The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.

The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government’s responsibility to protect the public.

From a Constitutional perspective, there are two parts of the Bill of Rights that are at issue, the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And the Fifth Amendment:

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.

Seizing someone’s computer, assuming that it is supported by a warrant based on probable cause, is clearly permissible. But what if you need an unbreakable password to access what may be incriminating evidence (in this case, child pornography) ?

Clearly, the Fifth Amendment permits a suspect to remain silent, and revealing a password (assuming it’s not written down somewhere on a piece of paper subject to seizure) would clearly seem to be testimony. And that’s what one Federal District Court Judge has ruled:

On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

Now, here are the facts of the case:

The case began Dec. 17, 2006, when Boucher, a Canadian citizen with legal residency in the United States, was driving from Canada into Vermont when he was stopped at the border by a U.S. Customs and Border Protection inspector. The inspector searched Boucher’s car and found a laptop in the back seat, according to an affidavit filed with the court by Mark Curtis, a special agent with Immigration and Customs Enforcement who was called in by the inspector.

Boucher said the laptop was his, according to the affidavit. When the inspector saw files with titles such as “Two-year-old being raped during diaper change,” he asked Boucher if the laptop contained child pornography. Boucher said he did not know because he was not able to check his temporary Internet files, according to the affidavit. When you use your browser it saves a history of the websites you’ve visited, and the same is the case for any images downloaded onto a browser page whilst you’re perusing it, for example if you visited an adult website such as fulltube and images of an adult nature were downloaded in your browser during your visit to the site they would be automatically stored in your temporary internet files, although it’s perfectly legal to view adult pornography it is however illegal to view child pornography and any evidence of downloading or viewing of child pornography can be used as evidence in a case against you.

Curtis asked Boucher “to use the computer” to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says. Had it simply been legal content from a site like sexm, that would have been fine, but it was not the case in this instance.

Boucher was arrested and charged with transportation of child pornography in interstate or foreign commerce, which can carry a sentence of up to 20 years in prison for a first offense.

Keep in mind that in some versions of the story I’ve read online, Boucher was said to have typed in the PGP password prior to showing the files to the Border Patrol agents. And that, it seems, could be his downfall:

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. “If you admit something to the government, you give up the right against self-incrimination later on,” said Kerr, a former federal prosecutor.

Kerr has blogged about the case at The Volokh Conspiracy and said the following:

I don’t play in the sandbox of the Fifth Amendment as much as I do the Fourth, but my sense is that Judge Niedermeier is wrong. True, being forced to enter in the password has a communicative aspect to it. It says, “I know the password to drive Z on my laptop.” But based on the specific facts of the case, don’t we already know that? Isn’t it a “foregone conclusion” under the Fisher case? Boucher admitted that it was his laptop, and he described how he used it. When he agreed to show the officers the files inside, he had no problem powering it up and bringing them to the contents of drive Z. The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files Judge Niedermier’s response is that this is true for the child pornography the agents saw but that there may be other files on the computer that are also incriminating. Entering in the key will be akin to producing any other files that might exist, effectively saying, “these are files on my laptop.” But I think that’s wrong. As I see it, entering the passphrase doesn’t have any testimonial content as to Boucher’s knowledge or beliefs as to any other files in “drive Z” that may or may not exist. Maybe there are other incriminating files in drive Z. On the other hand, maybe there aren’t. But the answer to that is completely independent of what Boucher is being asked to do

It may be that entering in the passphrase will help the police find more child pornography, but that is not the result of the communicative aspect of responding to the subpoena. Boucher’s entering in the password won’t amount to Boucher’s testimony about anything they don’t already know in the context of this case. Its role is merely that it will let the police access whatever is on the hard drive, which may or may not relate to criminal activity and may or may not implicate Boucher. Boucher won’t be “bringing” the files to the police in response to an order to incriminating files; he ill merely be opening the door to the safe that we all know is his and that we seem to know he knows how to open.

I think Kerr is right on this issue. In the abstract, Boucher has a right to remain silent about the password to his files. His problem lies in the fact that he has already revealed the existence of the encrypted files, allowed the agent to view them (apparently using the password to do so), and admitted the computer was his.

1 4 5 6 7