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Bobbitt’s modalities and the DCC?

t Historical modality

n Prevention of state protectionism was one of the underlying purposes of USC, because one of principal defects of AOC was that they permitted such protectionsim.

n C/A. There is no evidence that Framers specifically intended that judiciary invalidate laws that hadn’t been prohibited by Congressional statute. Moreover, if text does not support judicial power, this reinforces conclusion that Framers did not mean for judges to have this power.

t Textual modality

n Article I, § 8, cl. 3 gives Congress the power to “Regulate Commerce . . . among the several States.” Other provisions in §9 prohibit duties on articles exported from any state, and § 10 prohibits states from laying imposts or duties without Congress’ consent.

n Marshallthought that Congress’ commerce power was exclusive but he wasn’t willing to push this position to its logical conclusion, which would have invalidated quarantine laws and prevented states from damming navigable waterways.

(1) If Congressional power is not absolutely exclusive, then is there a limited sphere of exclusive power over Commerce?

(2) Cooley said yes in 1851, holding that Congress has exclusive power to legislate on matters that “are in their nature national, or admit only of one uniform system.”

(3) But this category’s boundaries are hard to define. Moreover, this position leaves USC’s text behind, and is in realm of judicial gloss. Once one is willing to entertain Cooley’s solution, one has already conceded that (a) text is indeterminate and (b) it is legitimate to go beyond text.

(4) Thus, text does not support DCCdoctrine. At best, it is permissive insofar as it does not prohibit courts from assuming this power.

t Structural modality

n It is inconsistent with overall constitutional scheme for states to be able to enact protectionist laws that obstruct interstate commerce. It is not just original intent that is thwarted by such laws; textual provisions enumerated above indicate a purpose to maintain free trade among the states – a purpose we would be entitled to infer even if we did not know the history.

n C/A. It is not clear that this purpose will be thwarted if federal courts get out of DCCbusiness. Maybe this is Congress’ job.

n Response (another structural argument): Congress is less well-suited to do policing function than is SC. DCCis based on distrust of states; see Stone(294) drawing on representation-reinforcement rationale first seen in McCulloch, combined with view that Congress is too busy to police states (Jackson296). Both of these arguments together infer, from overall USC structure, that this job needs to be done and that SC is the entity that must do it.

t Doctrinal modality– DCCdoctrine is well established in precedent, having been endorsed by Marshallhimself. However, question being addressed today is whether precedent is justified.

t Ethical modality

n American cultural ethos of “common citizenship”: U.S. is a single nation, not an expedient alliance between otherwise hostile powers. Thus, it follows that people of one state ought not to treat interests of fellow Americans as irrelevant or treat them as resources to be exploited. But this is how outsiders are treated by protectionist laws è SC cannot tolerate such laws.



n C/A. This argument has limitation: it says nothing about judicial role.

t Prudential modality

n Bad things will happen if states are allowed to do whatever they want: free trade will break down, trade wars will ensue, and political and economic consequences will be bleak.

n C/A. If results are that bad, then Congress can probably be relied upon to intervene.

t Analysis

n Historical, structural, ethical, and prudential arguments all rely on consequentialist reasoning.

n Because consequentialist reasoning depends on predictions about future, and because such predictions are necessarily contestable among reasonable people, there will always be room for disagreement about validity of DCCdoctrine.


Date: 2015-01-02; view: 732


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