Below is text from one section of Douglas Galbi’s paper, “Revolutionary Ideas for Radio Regulation.”  For other sections, see www.galbithink.org or www.ssrn.com

Appendix B

A Desperate Case under the Commerce Clause:

U.S. Courts’ Role in Determining the Federal-State Balance

in Radio Regulation

From about 1937 to 1994, the Commerce Clause of the U.S. Constitution was thought not to impose any effective limits on federal power.[1]   During that period the Supreme Court turned aside every challenge it heard to federal authority under the Commerce Clause.[2]  When the Constitution was written, you could not fly across the country in a matter of hours, you could not talk with a person thousands of miles away, nor could everyone all across the U.S. watch an event occurring in Washington, or on the moon.  Our economy seems much more unified now.   Federalism itself smells of slavery, succession, and dead bodies.  Discussing federalism as a matter of constitutional law seems like an anachronism, a pointless and dangerous diversion, or a betrayal of our national unity.[3]   Surely progress means defending the New Deal and upholding the supremacy of our national legislative process in areas classified as economic or social.  Why should courts care about federalism?  Why should courts care about the Commerce Clause, a most implausible aspect of federalism?

Federal radio regulation shows effects of not judiciously articulating federal power under the Commerce Clause.  In the 1920s, most persons considered radio to be AM radio broadcasting.  Many other uses of radio were known at the time, but they were much less popular.  Fruitful development of radio broadcasting was widely thought to require a scheme of federal regulation.  With remarkably little attention to statutory construction and judicial process, the courts allowed that consensus to become the basis for federal law covering all radio use.  This federal-state balance has endured, despite relevant technological, social, political, and economic changes, through to the present.  Thus an expedient and widely acclaimed solution to the regulatory crisis of the day has led to federal law covering all radio use. 

This unprecedented legal development offers the opportunity to better understand the meaning of the Commerce Clause.  The natural sense of the word “commerce” was much different in the eighteenth century than it is today.  Commerce then meant intercourse, ongoing, deeply enmeshing relationships among persons.  While much has changed since the eighteenth century, general patterns of human behavior indicate that most persons still seek to realize themselves more fully through relationships with others.  Such relationships are not necessarily alternatives to the relationships that define the national polity.[4]  Human relationships concern, for the most part, mundane human activities.  The Commerce Clause, understood in its eighteenth century meaning, provides constitutional protection against legal developments that might too easily suppress broad categories of relationships.[5]  The Commerce Clause should have provided constitutional protection against federal suppression of radio use supporting distinctive local relationships but no substantial interstate relation.  Understanding the Commerce Clause in this way leads to a better interpretation of important Commerce Clause cases.  Understanding the Commerce Clause in this way also helps to articulate a better federal-state balance in radio regulation.

B-I. Case History of the Federal-State Balance in Radio Regulation

Three district court decisions in the late 1920s seem to have been formally influential in interpreting the Commerce Clause with respect to radio regulation.  In Whitehurst v. Grimes (decided Sept. 17, 1927), an amateur radio operator brought suit in a district court in Kentucky.  The amateur radio operator sought to void a municipal ordinance imposing a license tax on radio operation.  In the third and concluding paragraph of its decision, the Court declared:  

Radio communications are all interstate.  This is so, though they may be intended only for intrastate transmission; and interstate transmission of such communications may be seriously affected by communications intended only for intrastate transmission.  Such communications admit of and require a uniform system of regulation and control throughout the United States, and Congress has covered the field by appropriate legislation.  It follows that the ordinance is void, as a regulation of commerce. [6]

The breadth of this decision, along with its economy of analysis and forthright statement of policy necessity, points to contemporary scholarly consensus regarding radio regulation.[7]  This decision, in turn, made this consensus more significant by giving it legal sanction.

In White v. Federal Radio Commission (decided Oct. 16, 1928), a district court in Illinois addressed even more concisely the federal-state balance in radio regulation.  The plaintiffs sought to enjoin enforcement of a Federal Radio Commission (FRC) order.  One of the motions for action was that the Radio Act of 1927 is unconstitutional.  The court denied this motion with a single sentence:

The regulation of radio communication is a valid exercise of the power of Congress under the commerce clause.[8]

Subsequent cases cited White as establishing that Congress can regulate all radio communications under the Commerce Clause.

The judge that decided White provided a more extensive opinion in United States v. American Bond & Mortgage Co. (decided Mar. 1, 1929).  The U.S. Attorney General sought injunction against the defendant broadcasting without a federal license in Illinois, about twenty-five miles south of Chicago.  The defendant attacked the constitutionality of the Radio Act of 1927 and questioned “the scope of the act as a proper regulation of interstate and foreign commerce.” 

The Court’s judgment in American Bond & Mortgage takes different forms.  Anticipating the Communications Amendments Act of 1982, the Court described the Radio Act of 1927 as asserting government control “over all channels of radio transmissions” rather than “over all channels of interstate and foreign radio transmissions.”[9]  In addition, the decision provided data relating the power of a radio station to the radius of service, differentiated by service quality.  The terrain, weather conditions, and quality of receiving equipment were not specified, and the data source was not given.  The Court presented this data as establishing necessary conditions:

It is also apparent that the nuisance area of a station using power of 50 watts (the lowest for which a station is licensed) will almost certainly pass beyond the borders of the state in which the broadcasting station is located.  This may cause interference within the state with radio waves coming into the state from other states; with broadcasting stations within the state whose service area extends beyond the state; with broadcasting stations in other state which are broadcasting across other state lines.  The engineering showing demonstrates that unified public control is essential to secure to the owners of broadcasting stations an assured channel, which they may use without interference, and to secure to the listening public satisfactory reception of the programs broadcast on those channels.[10]

Given that the FRC refused to license broadcasting stations with less than 50 watts power, the significance of this power level to the validity of federal licensing of all radio communications is not clear.  But analysis of the proper scope of federal regulation of radio communication wasn’t, after all, really necessary for the Court:

It does not seem to be open to question that radio transmission and reception among the states are interstate commerce. … A device in one state produces energy which reaches every part, however small, of the space affected by its power.…It is intercourse, and that intercourse is commerce.  …

The provisions of the act prescribed the only method by which order could be brought out of chaos and this form of interstate commerce saved from destruction.[11]

This decision has been regularly cited as support for the proposition that all radio communications can be regulated under the Commerce Clause.  The Court noted that emphasis in analyzing radio regulation should be “on the receiving public, whose interest it is the duty of the Government, parens patriae, to protect.”[12]

Beginning in 1929, the DC Circuit issued dicta that, although often inconsistent and indirect, played an important role in providing judicial support for federal regulation of all radio communications.   Under the Radio Act of 1927, this Court handled all appeals of FRC decisions.  Appeals typically concerned license denials.  An appeal of a FRC license denial would not seem to present for judgment the constitutionality of federal licensing.  Nonetheless, in addressing appeals of FRC decisions, the Court repeatedly made statements and references addressing the constitutionality of federal licensing. 

General Electric Co. vs. Federal Radio Commission (decided Feb. 25, 1929):

This act [Radio Act of 1927], which is yet in force, forbids all radio broadcasting in this country, except under and in accordance with a license granted under the provisions of the act. … under the commerce clause of the Constitution (article 1, Sec. 8, cl. 3), Congress has the power to provide for the reasonable regulation of the use and operation of radio stations in this country…. Without such national regulation of radio, a condition of chaos in the air would follow…Davis, Law of Radio, p. 71; Zollman, Law of the Air, pp. 102, 103.[13]

Technical Radio Lab. v. Federal Radio Commission (decided Nov. 4, 1929):

…Congress has power to regulate interstate commerce, and radio communication in general falls within this classification.  Whitehurst v. Grimes (D.C.) 21 F.(2d) 787; 35 Op. Attys. Gen. 126;  White v. Federal Radio Commission (D.C.) 29 F.(2d) 113; United States v. Am. Bond & Mtg. Co. (D.C.) 31 F.(2d) 448; Davis, Law of Radio Communication, p. 29.[14]

City of New York v. Federal Radio Commission (decided Nov. 4, 1929):

In our opinion the interstate broadcasting of radio communications is a species of interstate commerce, and as such is subject to federal regulations.  Whitehurst v. Grimes (D.C.) 21 F.(2d) 787; United States v. American Bond & Mortgage Co. (D.C.) 31 F.(2d) 448; General Electric Co. v. Federal Radio Commission, 58 App.D.C. 386, 31 F.(2d) 630; Davis, Law of Radio, 71; Zollman, Law of the Air, 102, 103.[15]

Chicago Fed. of Labor v. Federal Radio Commission (decided May 5, 1930):

This statement [FRC cannot arbitrarily withdraw licenses] does not imply any derogation of the controlling rule that all broadcasting privileges are held subject to the reasonable regulatory powers of the United States…[16]

KFKB Broadcasting Ass’n v. Federal Radio Commission (decided Feb. 2, 1931):

We have held that the business of broadcasting, being a species of interstate commerce, is subject to the reasonable regulation of Congress. Technical Radio Lab. v. Fed. Radio Comm., 59 App.D.D. 125, 36 F. (2d) 111, 66 A.LR. 1355; City of New York v. Fed. Radio Comm., 59 App.D.C. 333, 41 F. (2d) 422.[17]

Trinity Methodist Church v. Federal Radio Commission (decided Nov. 28, 1932):

We have already held that radio communication, in the sense contemplated by the act, constituted interstate commerce, KFKB Broadcasting Ass’n v. Federal Radio Commission, supra; General Elec. Co. v. Federal Radio Commission, 58 App. D.C. 386, 31 F.(2d) 630, and in this respect we are supported by many decisions of the Supreme Court, Pensacola Telegraph Co. v. Western Union Tel Co., 96 U.S. 1,9, 24 L.Ed. 708; International Text-Book Co. v. Pigg, 217 U.S. 91, 106, 107, 30 S. Ct. 481, 54 L Ed. 678, 27 L.R.A. (N.S.) 493, 18 Ann. Cas. 1103; Western Union Teleg. Co. V. Pendleton, 122 U.S. 347, 356, 7 S.Ct. 1126, 30 L.Ed. 1187. [18]

These statements supported federal regulation of all radio communications in a variety of formally interesting ways.  They also present a largely unexplored constitutional “reasonableness” constraint on at least this area of federal legislation.  But most importantly, these statements show that, from 1929 to 1932, the DC Circuit struggled to establish a solid legal foundation for federal regulation of all radio communications.

Supreme Court dicta aided this project.  In Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co. (decided May 8, 1933), the Court considered whether the FRC could grant a licensing to a radio broadcaster in one state, and, to avoid interference, terminate licenses to two radio broadcasters in another state.  The Court declared:

No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications.  No state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities.[19]

The first sentence above is literally true.  The following sentence, however, points to the Court’s position: Federal regulation of all radio communications is unquestionably legal under the Commerce Clause.  The Court cited three of the above DC Circuit decisions in support of this position.  But the Court’s statement suggests that this position seemed not to have required legal justification then.

The most recent Supreme Court dicta that bear any formal resemblance to a ruling came in Fisher’s Blend Station v. Tax Commission of State of Washington (decided Mar. 30, 1936).  In this case, the licensee of two stations, one broadcasting across eleven states, another broadcasting across the U.S., sought to enjoin the Tax Commission from collecting tax on its stations.   The arguments concerned whether factors other than the range of broadcasting implied that the station operator was engaged in intrastate commerce.  The court rejected the arguments and voided the tax as a tax on interstate commerce.  The Court also declared:

By its very nature broadcasting transcends state lines and is national in its scope and importance – characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause.  See Federal Radio Commission v. Nelson Bond & Mortgage Co., 289 U.S. 266, 279, 53 S.Ct. 627, 77 L.Ed. 1166.[20]

This statement clearly pertains to AM radio broadcasting.  That it has more general legal significance for the federal-state balance of power in regulating radio use seems questionable.

Subsequent Supreme Court cases simply describe the radio and communications statutes as establishing federal control over all radio use.  Compare the texts of those statutes, which are quoted and analyzed in Part II.B of the attached main paper, to the Court’s descriptions of them. In Federal Communications Commission v. Pottsville Broadcasting Co. (1940), the Court declared:

By this Act [Radio Act of 1927] Congress, in order to protect the national interest involved in the new and far-reaching science of broadcasting, formulated a unified and comprehensive regulatory system for the industry.[21]

National Broadcasting Co. v. United States (1943) pushed a similar description back to the Radio Act of 1912:

The Statute [Radio Act of 1912] forbade the operation of radio apparatus without a license from the Secretary of Commerce and Labor;[22]

By 1963, Head v. New Mexico Board of Examiners in Optometry, the description became an abbreviated statutory reference placed in a footnote:

It is to be noted that this case in no way involves the Commission’s jurisdiction over technical matters such as a frequency allocation, over which federal control is clearly exclusive. 47 U.S.C. s 301.[23]

None of the three quotes above are literally correct.  The jurisdictional qualifications written in the federal communications statutes have not merely been rendered without effect.  They have been obliterated – one can read the text of the statutes and literally not see them.

Court decisions through to the present do not appear to recognize the problems with precedent in this area.  The status of federal control of all radio use is perceived to have been authoritatively settled.  In 1984, Federal Communications Commission v. League of Women Voters of California, all the Supreme Court had to say was this:

First, we have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource [radio spectrum].[24]

The cited case history most directly relevant is National Broadcasting Co. v. FCC and Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co.  See the analysis of these cases above.  Lower courts have generally followed the Supreme Court’s lead.  For example, a Circuit Court decision in 1994 declared:

As the Supreme Court recognizes, the FCC’s jurisdiction “over technical matters” associated with the transmission of radio signals “is clearly exclusive.”  Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 430 n. 6, 10 L.Ed.2d 983 (1963);[25]

Whether bad precedent can be converted into good precedent through time and repetition seems to be the relevant legal question here.

To see existing precedent in action, consider an FCC Order that addressed the constitutionality of an unlicensed low power radio station.  The station was broadcasting with a power of about 10 watts from an apartment in Berkeley, CA in 1993.   According to a determination based on established FCC technical regulations, a 10 watt station with a 100 meter antenna has a service radius of 5.9 kilometers.   The Order noted that the Communications Act (as amended in 1982) requires a license for intrastate radio transmissions.  To support the constitutionality of requiring a federal license, the Order cited National Broadcasting Co. v United States and FCC v. League of Women Voters of California.  The Order noted:

There is no support whatever in these or any other Supreme Court decisions for [the station operator’s] view that the licensing requirement of Section 301 of the Communications Act cannot be enforced unless there is a specific showing that the unlicensed radio transmissions caused or may cause harmful interference.[26]

The FCC saw no need to consider statutory and legal history or the evolution of radio technology and applications.  What appeared to be a clear, general legal rule simply decided the case.

One can find, however, analysis that dared to show more sensitivity to particular, contemporary facts and that exercised more analytical discipline.   In 1927, an important treatise on radio law noted:

Perhaps the applicable rule can be expressed by saying that if the station is in fact an isolated unit, keeping its emanations within the state boundaries, separate and apart from the general mass of interstate communications, it remains free from Federal control.[27]

This statement was clearly meant to have no practical effect.  It succeeded.  Court rulings cited the treatise to support the position that all radio communication is necessarily interstate.  While most courts saw no need to maintain space for deliberation about effects and jurisdiction, a district court in 1931 impressively reasoned:

The plaintiff contends that all radio communication is necessarily interstate, and in the present state of the art, this appears to be correct.  However, it is not inconceivable that radio communication may in the future be so perfected that it may be confined strictly intrastate; but we do not consider it necessary to make any ruling upon that point now.[28]

Other parts of the opinion contradict the above statement.[29]  The court seemed unable to resist making statements supporting the prevailing view that all radio communications are categorically interstate commerce.

The most careful, fact-based analysis of jurisdiction is in United States v. Gregg.  A district court in Texas decided Gregg on Jan. 10, 1934.[30]  The case concerned a 2-4 watt radio station in Houston, called “Voice of Labor, Inc,” which had a service radius of approximately 30 miles.  The Court found that the station did not ordinarily communicate with receivers in other states or on vessels at sea; it did not ordinarily have effects in other states; it did not ordinarily interfere with radio communications from Texas to other states; and it did not interfere with communications among states other than Texas.  The Court noted, however, that other stations in Miami, Fla., and Shreveport, La. broadcast on the frequency that “The Voice of Labor” used.  “The Voice of Labor”’s broadcasts interfered with reception in Houston of those interstate broadcasts.  The Court thus found that “The Voice of Labor” was prohibited under the Radio Act of 1927 from operating without a license. 

The Court then addressed the constitutionality of the portion of the Radio Act of 1927 that forbid “The Voice of Labor” from broadcasting without a license.  The Court reviewed in detail a number of cases regarding regulation of interstate commerce.  After three and half pages of such review, the Court curiously added the following paragraph:

See, also, cases involving various phases of radio broadcasting: American Bond & Mortgage Co. v United States (C.C.A.) 52 F.(2d)319; Station WBT v. Poulnot (D.C.) 46 F.(2d) 671; Whitehurst v. Grimes (D.C.) 21 F.(2d) 787; United States v. American Bond & Mfg. Co. (D.C.) 31 F.(2d) 448; General Electric Co. v. Federal Radio Commission, 58 App.D.C. 386, 31 F.(2d) 630, 631; White v. Federal Radio Com. (D.C.) 29 F.(2d) 113.[31]

These cases may have gone unanalyzed because their value as precedent was not related to specific written rulings in them.  The Court followed that paragraph immediately with its ruling:

In light of these cases and many others that may be cited, I have no difficulty in concluding that the Congress may lawfully, as has been done in this act, require the licensing and regulation of intrastate radio broadcasting stations where, as here, the operation thereof interferes with interstate commerce.

Note that this ruling is narrow: it relates to radio broadcasting of the type discussed in the case.  The Court, deciding in equity, then quickly found the Radio Act of 1927 reasonable:

That it is reasonable will be seen by reflecting that a sufficient number of unlicensed and unregulated intrastate radio broadcasting stations, such as is defendants’, broadcasting on different frequencies in each community, could and would not only interfere with, but destroy, all interstate radio broadcasting.

This statement contrasts sharply with the style of reasoning and findings in the rest of the opinion.  It reasons from an extreme hypothetical far removed from any actual findings. 

Precedent for federal control of all radio use, though widely regarded as rock-solid, at best settles the matter legally just for AM radio broadcasting.  Stare decisis is an important legal principle.  But in considering “technical” matters related to “radio” frequencies, courts might apply stare decisis much more carefully and much more narrowly.  Areas of human activity that once might have been considered technical radio matters are now central public concerns.[32]  Radio regulation, to promote the public interest, needs judicious legal review.    

B-II. Misunderstanding Commerce in the Real World

In legal deliberations in the 1920s, AM radio broadcasting was abstracted into radio communications, and radio waves were analogized to instruments of commerce such as railroads and the telegraph.[33]  Thus a natural aspect of the physical world – electromagnetic spectrum – was implicitly conceptualized as an instrument.  The sense that the physical world is not an instrument but part of creation, and very good, was lost.   Dominion over the physical world, in the sense of good stewardship of a household, can easily be mistaken for merely ruling over.  Keeping the physical world, in the sense of keeping a garden, can be easily mistaken for keeping a purchase.  Both dominion and gardening evoke relationships.  AM radio broadcasting, as historically incarnated, can be characterized in terms of relationships among persons.  But all activities associated with a particular physical aspect of the world, e.g. activities using (radio) spectrum, cannot be articulated in this way.  Because of an unappreciated transformation of its subject, radio regulation developed a totalizing approach radically different from regulation for other aspects of the physical world.

To see how easily this transformation occurred, consider an important, non-judicial opinion.  Early in 1926, the Commerce Department apparently was pondering the legality of its implementation of the Radio Act of 1912.  On June 4, 1926, the Secretary of Commerce requested an opinion from the Attorney General on this question:

Does the 1912 Act require broadcasting stations to obtain licenses, and is the operation of such a station without a license an offense under the Act?[34]

On July 8, 1926, the Attorney General replied:,

There is no doubt whatever that radio communication is a proper subject for Federal regulation under the commerce clause of the Constitution.  Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U.S. 1, 9, 24 L. Ed. 708; 24 Op. Attys. Gen. 100.  And it may be noticed in passing that even purely intrastate transmission of radio waves may fall within the scope of Federal power when it disturbs the air in such a manner as to interfere with interstate communication, a situation recognized and provided for in the Act.[35]

From the question to the answer there is a shift from (AM radio) broadcasting to radio communication.  This shift in formal categories might have been of little real significance in 1926.  At that time, for the vast majority of persons, radio communications practically meant such broadcasting.  But the shift had deep, subsequent significance for radio regulation.

Federal radio regulation became law with a different constitutional status than federal regulation of other aspects of the physical world.  Consider land use.  State and local governments are involved in regulating land use through mechanisms such as property law, zoning statutes, nuisance laws, and the use of land in providing public services (garbage collection, schools, etc.).  Moreover, land use directly relates to state and local taxation.  Economic studies of the sort discussed in United States v. Lopez and United States v. Morrison could easily be produced to document that land use affects interstate commerce.[36]  However, in Jones v. United States, a unanimous Supreme Court found that the statutory language “…property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce” does not cover an owner-occupied residence not used for any commercial purpose.[37]   The Court made careful and well-justified formal distinctions between “used in any activity affecting commerce” and “affecting commerce,” and between statutory and constitutional questions.  Does a realistic appraisal of the meaning of Jones imply limits on federal regulation of land use under the Commerce Clause?  Are there constitutional constraints on federal regulation of land use other than the constitutional rules of the national political process?  Such questions would be vigorously deliberated if anyone really thought that the answers were not obvious.

Consider also federal regulation of water use.  Gibbons v. Ogden ruled that the Commerce Clause comprehended the power to regulate navigation.  Navigation, a particular water use feasible in some bodies of water, was considered in Gibbons as an aspect of trade.[38]  Most other water uses have been primarily of local concern.  Physiographic, climatic, economic, and historical factors create significant differences in water use across the U.S.[39]  States and persons hold title to most water on the land and tidal areas of the U.S.[40]  Water use law has primarily developed within states and localities.  As a Supreme Court decision that reviewed the federal-state balance in water law noted:

The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress.[41]

Whether Congress could regulate all water use under the Commerce Clause is a question that has been unnecessary to discuss.  Even to contemplate it seems impolite.

With respect to specific activities, a federal statute might rationally be interpreted to have regulated water use to the fullest extent possible under the Commerce Clause.  Section 404(a) of the Clean Water Act regulates discharging dredged or fill material into “navigable waters.”  “Navigable waters” are defined under the Act as “the waters of the United States, including the territorial seas.”[42]  In The Solid Waste Agency of Northern Cook County v. United States Corps of Engineers, the petitioner sought to use an abandoned sand and gravel mining site to dispose baled, non-hazardous solid waste.  The site included “a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet).”[43]  The Supreme Court found that Congress had not made a clear statement indicating that the Act covers such sites.[44]  The Court noted “…the States’ traditional and primary power over land and water use,” cited precedent indicating a preference for avoiding constitutional questions, and read the Act as not applying to the site. 

A vigorous dissent argued that the Act clearly addresses its regulations to all “waters over which federal authority may properly be asserted.”[45]  The dissent analyzed this federal authority under the Commerce Clause and concluded that Congress has the power to prohibit “filling any part of the 31 acres of ponds” on the site.[46]  Even dissenting Supreme Court justices, by virtue of their position in the U.S. judiciary, deserve to have their formal statements categorized as rational.[47]  While the correct legal interpretation may still be debated among scholars, the Clean Water Act surely can be rationally interpreted to regulate a particular water use to the fullest extent possible under the Commerce Clause.

The point is that the Clean Water Act identifies a particular water use.  As the dissent pointed out:

The activity being regulated in this case (and by the Corps § 404 regulations in general) is the discharge of fill material into water.  The Corps did not assert jurisdiction over petitioner’s land simply because the waters were “used as habitat by migratory birds.”  It asserted jurisdiction because petitioner planned to discharge fill [emphasis in original] into waters “used as habitat by migratory birds.”[48]

More generally, the dissent noted that the Clean Water Act proclaimed the goal of ending water pollution by 1985.[49]  Legislative history of the Act includes a statement that the “main purpose” of the Act is “to establish a comprehensive long-range policy for the elimination of water pollution.”[50]  Water pollution is a much narrower class of activities than water use.  Moreover, many types of water pollution effect relationships of harm substantially between persons within a state and persons outside the state.[51]  Such relationships clearly come under the meaning of interstate commerce.

The development of aviation regulation also shows the importance of understanding the Commerce Clause in relation to specific activities.  Law of the air in the 1920s meant law concerning aviation and law concerning radio.[52]  With the development of aviation and radio broadcasting, the physical characteristics of air gained new significance.  Just as persons struggled to communicate the meaning of radio spectrum (“the ether”), a judge in 1934 similarly struggled to define airspace:

What is the sky?  Who can tell where it begins or define its meaning in terms of the law?  When can it be said that a plane is above the sky or below it?[53]

Many subsequent cases struggled with such issues, and law in this area remains unclear to this day.[54]  Federal law of the air has, however, remained focused on aviation. 

The Empire State Building illustrates the extent of state and local regulation of air use.  Technical analysis of the flight patterns of airplanes, such as a biplane with a motor rated at 90 horsepower and a monoplane with motor rated at 220 horsepower, established 500 feet of altitude as the lower boundary of airspace under federal aviation regulation in the late 1920s.[55]  Courts, beginning in 1930 through to the present, have given this early technical judgment enduring importance in aviation law.[56]  That legal boundary did not, however, affect early skyscraper construction.  A former governor of New York led construction of the Empire State Building in 1930 in a race between New York and Chicago to claim the world’s tallest building.[57]  When completed in 1931, the Empire State Building reached 1250 feet into the Manhattan skyline.  The building included a final 200 feet section intended as a dirigible mooring mast.  The significance of this building to aviation was tragically emphasized in 1945, when a B-25 bomber in dense fog crashed into the 79’th floor.[58]  Such an accident surely provided reason and opportunity to establish comprehensive, unified federal regulation of the airways.

Despite the significance of tall objects and airports to aviation, federal regulations carefully assert only an advisory role in regulating real estate development.  Federal Aviation Administration (FAA) rules require that it be given notification of plans for a construction extending more than 200 feet above ground level.[59]  The FAA analyzes the implications of the construction for air navigation and categorizes the construction as a hazard or not a hazard.  The FAA does not assert authority to prohibit constructions that it deems hazardous to air navigation.[60]  The FAA also requires notification for construction of an airport.[61]  Upon such notification, the FAA does an aeronautical study of the proposal, and then states objections, if any, and in some cases conditions for ameliorating objections.  The FAA does not claim authority to prohibit construction in any case.[62]  Thus FAA regulations show considerable respect for state and local governance of activities significantly affecting the use of the airways, i.e. the use of air for aviation. 

 A federal law regulating all uses of the air or all uses of the sky would raise serious constitutional issues under the Commerce Clause.  The Air Commerce Act of 1926, like the Radio Act of 1927, distinguished between interstate and intrastate activities.[63]  In the 1930s, states passed statutes regulating intrastate aviation.[64]  Over time, however, federal law came to cover both interstate and intrastate aviation.  This development of federal law seems to have sound legal and practical bases.  But despite many public concerns relating to aviation, airspace law was not totally federalized.  A complex and vitally important law governing air rights relating to real estate developed at the state and local level.[65]  State and local law regarding airport zoning and associated nuisances also developed.[66]  These developments indicate awareness that the Commerce Clause places limits on federal regulation of air use. 

Electromagnetic spectrum is similar to land, water, and air.  Electromagnetic spectrum, like land, water, and air, is a general aspect of the physical world.   Electromagnetic spectrum, like land, water, and air, is not itself an instrumentality of commerce.  New technological developments are rapidly expanding the range and variety of human activities that use radio.  That one federal law would assert authority under the Commerce Clause to govern interstate highways and backyard sandboxes (land use), or water pollution and swimming (water use), or aviation and speech (air use), seems so remote and gratuitously provocative as to be not worth deliberating.  But current federal law that governs “disturbing” radio spectrum is that type of law.[67]

B-III. Re-Articulating Commerce

To identify and maintain boundaries for radio regulation under the Commerce Clause, one must recover the natural sense of the word “commerce” in eighteenth century thought.   “Commerce” meant intercourse.[68]  The word “commerce” has been used in English only since the sixteenth century, when it came into use to supplement “merchandise,” meaning the buying, selling or bartering of moveable goods, or the moveable goods themselves.[69]  With the rapid growth of the English economy in the second half of the sixteenth century and the development of a Dutch empire in world trade, the activity of merchandizing became a systematic network of ongoing relationships.[70]  Ongoing, deeply enmeshing relationships is what “commerce” added to the terms “merchandise,” “traffic,” and “trade.”[71]

Key works in the English language illustrate this meaning. Consider Christian scripture. 

In the King James Version of the Bible, a translation finished in England in 1611, the words “merchandise,” “trade,” and “traffick” occur repeatedly, but “commerce” never occurs.[72]  Words used in a sense most closely approaching the eighteenth century meaning of commerce are in Matthew 22:5 (“But they made light of it, and went their ways, one to his farm, another to his merchandise”) and in John 2:16 (“make not my Father’s house a house of merchandise.”)  In the Vulgate, St. Jerome’s Latin translation of Christian scripture in 400 CE, these phrases are rendered with forms of “negotiation,” meaning wholesale or banking business, or more generally, business or traffic.[73]  Twentieth-century translations use “business” for “merchandise” in Matthew 22:5, and “into a market,” “place of business,” or “house of trade” for “house of merchandise” in John 2:16.[74]  These meanings were too narrow to invoke the use of the word “commerce” in early seventeenth century English.

Shakespeare shows that the natural sense of commerce then covered the full sense of human relationships.  The word “commerce” occurs four times in Shakespeare’s oeuvre.[75]   Malvolio, a courtier deluded that has become a great political and romantic favorite of the Countess Olivia, is described by Olivia’s maid at the end of a playful dialogue as being engaged “in some commerce with my lady.”[76]   That is an insinuation of intercourse in many human dimensions.  Regarding Archilles’ intimate relationship with a prominent woman in the enemy city of Troy, Ulysses says to him: “All the commerce that you have had with Troy / As perfectly is ours as yours, my lord.”[77]  The significance to the state of this relationship – this commerce – means that it could not be kept hidden.  To Agamemnon, the leader of the Greek camp, Ulysses urges the importance of respecting order in relationships, and he contrasts “peaceful commerce from dividable shores” with bounded waters flooding the globe, sons striking fathers, and power, will, and appetite perverting justice.[78]  Finally, in a scene underscoring disordered relationships, Ophelia, returning love letters to a Hamlet deeply troubled by the events in his family and in the royal court, asks Hamlet: “Could beauty, my lord, have better commerce than with honesty?”[79]  Hamlet responds by speculating on the transforming power of relationships between virtues and of relationships between persons.  Thus commerce means intercourse so intimate and comprehensive as to be transformative.

For eighteenth century intellectuals and public figures, the natural and obvious meaning of commerce comprised a broad sense of relationship.  The 1776 Declaration of Independence declared the “United Colonies” to have “…full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”  Consider the four distinguished acts and things: “War,” “Peace,” “Alliances,” and “Commerce.”  The selection and order of these terms indicates that commerce, balanced against “alliances,” is a serious, informal, general, peaceful relationship not merely limited to trade.[80]

Montesquieu discussed doux commerce – sweetness and gentleness that commerce engendered in relations among persons.  This state of relations he set in contrast to hostility and violence.[81]  A Scottish historian in 1769 declared:

Commerce tends to wear off those prejudices which maintain distinction and animosity between nations.  It softens and polishes the manners of men.[82]

Concern about commerce meant concern about relationships among persons.  Thus James Madison argued that the purpose of the Commerce Clause is to avoid practices that would “nourish unceasing animosities” and that might “terminate in serious interruptions of public tranquillity.”[83]

Alexander Hamilton recognized contemporary views on the transformative power of commerce and of republican government:

The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars.  Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other.  They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.[84]

But he ridiculed such a view as abstract speculation contrary to real experience:

Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?  Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals?  Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory?  Have there not been as many wars founded on commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?  Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other?  Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.[85]

Hamilton argued that the structure of commercial governance affected the nature of relationships among citizens of the United States:

The interfering and unneighborly regulations of some States, contrary to the true spirit of 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 intercourse between the different parts of the Confederacy. … 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.[86]

Thus, to Hamilton, commerce itself does not constitute harmonious human relationships.  Under different structures of governance, the qualities of commerce can be very different.   

Gibbons v. Ogden, a Supreme Court case decided in 1824, inadvertently helped to create space for a much different legal perspective on commerce.  The primary ruling of the Court declared:

Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.  It describes commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse….[87]

The opinion clearly identifies “commerce” as “intercourse,” meaning more than “traffic” or “trade.”  Yet the opinion also uses the phrases “no sort of trade,” “commercial intercourse,” and “trading intercourse.”  These phrases may have contributed to misunderstanding the eighteenth century meaning of commerce as being only a particular dimension of intercourse, and thus less than intercourse.[88]  The concurring opinion shows meaning moving in that direction:

Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labour, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce…[89]

This is an early glimpse of what Marx saw in the British Industrial Revolution.  Commerce, and economics more generally, was evolving to focus on concepts and commodities abstracted from persons.

Cases addressing the telegraph contributed to this change in the meaning of commerce.  In Pensacola Telegraph v. Western Union (decided in 1877), the Supreme Court declared:

Since the case of Gibbons v. Ogden (9 Wheat. 1), it has never been doubted that commercial intercourse is an element of commerce which comes within the power of Congress. … it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.[90]

One might consider the transmission of intelligence to be intrinsically related to human intercourse.  But Pensacola’s reference point was not the primary ruling in Gibbons but the concurrence.  Pensacola presented intelligence as a commodity – something “transmitted” like a commercial good. 

Four years later, Telegraph v. Texas showed this understanding in analogy:

A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods.  Both companies are instruments of commerce, and their business is commerce itself.[91]

The wonder of the telegraph was that it separated communication from physical relation and movement of objects:

But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence.[92]

In these decisions and others, the Court found telegraphic communication across state lines to be interstate commerce.   Rather than understanding communication as inter-subjectivity extended in space, courts, following Pensacola and reasoning consistent with the intellectual and practical circumstances of their times, presented communications as the transmission of intelligence analogized to a commodity. 

Yet by the late nineteenth century, the telegraph had substantial and well-recognized affects on relationships spanning the nation.  Telegraph lines expanded with the railroads, enabling considerable capital savings and thus enabling more persons to be brought more quickly within the scope of this national transportation network.[93]  Logistical control through telegraphic communication prompted a new national division of labor in the slaughtering and meat packing industries, a national trade in fresh fruits and vegetables, and the growth of mail order houses and mass merchandising.[94]  The telegraph also transformed commodities and securities trading.  By 1874, Western Union Telegraph transmitted near-real-time transaction data from the New York Stock Exchange to 116 other cities.[95]  By that time Western Union was the first national monopoly, pointing toward a new, important national political issue.  Working with the U.S. Navy, Western Union also transmitted nationally time synchronization pulses that standardized time across the nation.[96]   Moreover, arising directly from the opportunities that the telegraph presented and closely tied to Western Union, the Associated Press had become “one of the most powerful centripetal forces shaping American society.”[97]  By the late 1880s, Associated Press wire dispatches made up 80-100% of news copy in mid-western small town dailies.[98]

These realities should be recognized when reading the Pensacola decision of 1877.  That decision merely briefly noted that the telegraph had “changed the habits of business” and had fostered communications among government officials spread across the country and the world.[99]  Certainly the telegraph had done much, much more than that.  The telegraph greatly transformed relationships among persons across the nation.  Yet the heart of the Pensacola decision was to judge intelligence to be a commodity.  Judging the scope of commerce came to be about identifying commodities and estimating effects on commodity streams.[100]  The loss of the eighteenth century understanding of commerce in Pensacola now seems natural and unremarkable.  Commerce as an economic reality is now firmly entrenched in a grand, deterministic narrative of the rise of a single national market.[101]  A better reading of Pensacola looks backwards and finds a different story.   In the silences of Pensacola – the obvious, unnoted reality that railroads and telegraphs dramatically changed human relations across the country – one can recognize the resources for much more vigorous and fruitful deliberations about the Commerce Clause.

B-IV. Spurring Fruitful Deliberation

Considering commerce in its eighteenth century meaning can help to revitalize deliberations about the Commerce Clause.  One might well consider many past Commerce Clause cases to be correctly decided, or at least to be prudently preserved.  But decisions are written to be discussed.  And discussions, like barn-raisings, require  good tools, in addition to what might be called rational calculations.  The eighteenth century meaning of commerce, etched in still-accessible artifacts, is one such tool. 

With this tool, one can better understand influential precedent.  For example, the Shreveport decision:

…does not ground federal power to regulate rates for intrastate carriage solely in their effect on commerce. [That decision] repeatedly emphasizes that it is the intrastate operations of “agencies” or “instruments” of interstate commerce that are being regulated.  That is, [it] focuses not just on the activity regulated, but also on the interstate nature of the entity regulated.[102]

An entity in the sense used above can be understood as a network of human relations.  The scope of these relations – commerce in the eighteenth century meaning of the word –matters in determining what falls within the boundaries of the Commerce Clause. 

The eighteenth century meaning of commerce can also spur needed discussion of the many Commerce Clause cases categorized as non-economic.   Consider Heart of Atlanta Motel v. United States (1964), Katzenbach v. McClung (1964), Daniel v. Paul (1969), and United States v. Morrison (2000).[103]   The first three found that the Commerce Clause provides authority to enjoin racial discrimination in certain motels, restaurants, and snack bars in the 1960s. The latter found that the Commerce Clause does not provide authority to enact civil remedies against gender-motivated violence in the 1990s.  These decisions imply a judgment directly related to the eighteenth century notion of commerce.  Through them the Court judged that racial discrimination in the 1960s was a national problem in commerce – intercourse – to an extent that gender-motivated violence in the 1990s was not.

That judgment might seem controversial or questionable, but it has a rational basis.  In an ideal speech situation, which characterizes a type of rationality, most persons might agree with the Court’s judgment.  Alternatively, based on lived experience, actual discussions with real persons, and moral intuition, most persons might agree with the Court’s judgment.  A mass of statistics and citations might also, on a purely formal level, be impressive enough to convince some.  Others might seek a clear, disciplined, and coherent analysis of statistics, preferably calculated using data from sources collecting data for broad purposes, in a methodical way, and with full documentation of definitions and measurement techniques.  Today there is no general agreement about what a rational basis for a view formally entails.  If there ever were such agreement, it certainly broke down more than a century ago.  A dominant thrust of philosophical and literary thought over the past decades has been to show the tenuous and historically contingent character of the basis or foundation for reasoning and knowledge.[104]  Nonetheless, the Supreme Court is the head of a judicial process that deserves considerable respect.  Its decisions, in a serious sense, define an important type of rationality.   Therefore, that racial discrimination in the 1960s was a national problem in commerce to an extent that gender-motivated violence in the 1990s was not is a statement with a rational basis.

The Supreme Court’s rationality has significance not just because it has legal force, but also because the Court provides written decisions that can stimulate fruitful discussions.  Such discussions do not naturally emerge via the workings of some invisible hand or tongue.  Good discussion, like every other aspect of human existence, requires resources and confronts constraints.  To see how the eighteenth century meaning of commerce can support more disciplined reading of statutes, prompt recognition of previously unrecognized but relevant facts, eliminate some utterability constraints, and stimulate imaginative discussion, consider in more detail Morrison.[105]

Morrison concerns gender and the Violence Against Women Act.[106]  What does “gender” mean in the Violence Against Women Act?  Gender there, as in much of the gender literature, seems to mean concern only about women.  However, interpreting “gender” to mean “women” probably would be an inappropriately cramped reading of the Violence Against Women Act.  “Gender” might better be read in the Act as a simple substitute for “sex” (among those who consider “sex” to be impolite, undesirable, or unfashionable), or as a word emphasizing the social and political construction of sexual categories, particular from a post-modern perspective that does not take the intrinsic differences between males and females to be significant.[107]  A hypothetical (reasonable) Member of Congress in the year 1994 probably would have had the courage to use “sex” in a statute and probably would not have felt compelled by decorum to choose the more ambiguous substitute “gender.”  Moreover, a (hypothetical) reasonable Member of Congress in the year 1994 or in the year 2000 probably would have wanted the statute to apply to a man, hostile to the idea of women voting, who assaulted, for that reason, a man voting dressed as a woman.  Thus, in judicial interpretation of the Act, gender should be understood to refer to the social and political construction of sexual categories.

Now consider the Violence Against Women Act in relation to the Commerce Clause.  The Violence Against Women Act addresses “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.”[108]  Criminal violence, without further qualification, has long been recognized as a matter of intrastate commerce.  One might analyze whether that is still appropriate under current circumstances by considering whether the relationships associated with criminal violence have a substantial interstate component.[109]   But criminal violence does not describe well the relationship that the Act governs.  The relationship that the Act governs is better described as gender hostility to such an extent that it is expressed in criminal violence. 

Attention to appropriately characterizing the relationships of concern matters for analysis. 

A lower court made specific findings that the alleged crime in Morrison expressed gender animus.  But such evidence does not go to the constitutionality of the Act under the Commerce Clause.  Cited statistics from the “mountain of data” put forward to support Commerce Clause authority consisted only of evidence that criminal violence significantly affects women.[110]  Such violence is repugnant and an insult to human dignity.  Thus data describing it are an affective showing.  These data do not, however, provide useful material for discussing Commerce Clause authority.

Other aspects of the formal use of data in Morrison have similar weaknesses.  The principal dissent cites statistics concerning the effects of violence against women on “the supply and demand for goods in interstate commerce,” as well as on “reductions in the [size of] the work force.”[111]  These data seem to reflect “silly questions rather than meaningful ones” and “tedious and somewhat arcane attempts to show how various social problems affect the economy.”[112]  The statistical material in Morrison does not enrich deliberation about the Court’s judgment that racial discrimination in the 1960s was a national problem in commerce to a greater extent than gender-motivated violence in the 1990s.  

With a better understanding of commerce, the Court could have easily found statistics and pushed forward analysis that would have stimulated meaningful deliberation.  Consider, for example, that in 1999, 12,785 males and 4,104 females died from assault (homicide).[113]  Gender unquestionably has something to do with the fact that more than three times as many males were killed.  One would explore whether gender animus, in particular, notions of male disposability and social norms suggesting that killing a male is less horrible than killing a female, are part of the explanation for this disparity.  With respect for the Commerce Clause, one would also consider whether these norms reflect a systematic national pattern of human relationships that is not encompassed by relationships in the states taken separately.[114]  Such facts and such analysis do not appear to have been seriously considered in the intellectually and rhetorically mechanistic deliberations about the Violence Against Women Act, or in the Court’s analysis of its constitutionality under the Commerce Clause.  Doing justice in a case is not a matter of displaying a mass of statistics, or even analyzing a couple.[115]  But facts can be useful in identifying truth.  The eighteenth century meaning of commerce can help to inform the selection and analysis of relevant facts.

This understanding of commerce also provides better intuition about boundaries.  A focus on economic effects exacerbates the un-Donne challenge:

No man is an island, entire of itself; every man is a piece of the continent, a part of the main.  If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or thine own were: any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.[116]

These words are easily recognized as poetry, which most persons in the U.S. today would regard as ignorable.  But viewed through the discourse of twentieth century economics, they present a formidable challenge:

“I really know of no place,” [Supreme Court Justice] Jackson confessed, “where we can bound the doctrine of competition as expounded in the Shreveport, the Wrightwood, and the Wickard cases.  I suppose that soy beans compete with wheat, and buckwheat competes with soy beans, and a man who spends his money for corn liquor affects the interstate commerce in corn because he withdraws that much purchasing power from that market.”  As so the jig was up.  “If we were to be brutally frank,” he wrote, “I suspect what we would say is that in any case where Congress thinks there is an effect on interstate commerce, the Court will accept that judgment.  All of the efforts to set up formulae to confine the commerce power have failed.   When we admit it is an economic matter, we pretty nearly admit that it is not a matter which courts may judge.”[117]

With more emphasis on intercourse, the situation may be more appealing.  While everyone may in some sense be related to everyone else, one intuitively recognizes that the relationship between spouses is of different quality than the relationship between foreigners.[118]  No arcane and tedious calculations of economic effects are necessary.  More generally, compared to such calculations, evidence and judgments about the boundaries of ongoing, systematic relationships are likely to produce a more coherent, stable, understandable, and satisfying body of law.[119]

Current case law tends to interpret the “substantially affects” test to describe an absolute measure of a single, all-encompassing quantity – dollars.  In Lopez, the Supreme Court “identified three broad categories of activity that Congress may regulate under its commerce power.”[120]  The final broad category was described as follows: “Congress’ commerce authority includes the power to regulate those activities that have a substantial relation to interstate commerce i.e. those activities that substantially affect interstate commerce...”[121]   Such language does not prescribe a particular method of analysis.  The requirement for “substantial relation” is entirely consistent with an eighteenth-century understanding of “commerce.”  Nonetheless, toting up the “effects” of an activity in dollar terms predominates in asserting the constitutionality of a federal statute under the Commerce Clause.  This may be related to the intellectual aura of cost-benefit analysis.   But even under this spell, law in this area struggles to establish legal discipline.[122]

Extent of relationship provides a better metric for disciplined analysis of relevant facts.  Common discourse, as well as scholarship outside the discipline of economics, often identifies as values sex and power, in addition to money.  But all three of these values appear to be, at least in academic discourse, reducible to any one.  Real relationships, in contrast, are case-specific and not reducible.[123]  The definition of the relationships of concern itself often provides a natural, direct measure for judging whether there is a substantial interstate component.  Thus water pollution, understood in terms of ecological relationships, has a substantial interstate component.  The allocation of water among persons living along a stream within a state does not.   Growing wheat for home consumption in the U.S. in the year 2002 might concern only relationships within households, while in a time and place where agriculture was key to national economic stability, the relevant set of relationships might be much different.[124]

A relational understanding of commerce has additional advantages with respect to jurisdictional elements.  Suppose Congress passes a law making it a federal crime to kill a child where the child wears any article of clothing home-sewn or otherwise affecting interstate commerce.  Would such a law mass constitutional mustard?  The significance of murdering clothed children to intercourse would seem to be about how threats to children, and parental fears of such threats, affect children’s opportunities to participate in social interaction.  Thus the clothes that a child wears would not matter in judging whether such a law comes under the scope of the Commerce Clause.  In contrast, a jurisdictional element such as participation in activities sponsored by national organizations, and a finding that threats to children participating in such activities are in fact greater, would be relevant to Commerce Clause analysis.  Analysis would thus recognize real circumstances and make meaningful distinctions.[125]

B-V. Doing Justice in Communications

If, in 1934, the Gregg case had been judged in terms of the relational understanding of commerce natural in the eighteenth century, the ruling may well have been different.  “The Voice of Labor” described itself as follows:

That the purpose of the station is to furnish a medium, free of charge, whereby the laboring people of Houston, Texas, may be kept in daily touch with all matters of public interest affecting the interests of working people. 

That each day there is broadcast over the station addresses and talks by men prominent in labor circles.  That these talks counsel and advise laboring people to wholeheartedly support the President of the United States in his effort to restore normalcy.

…That the station’s facilities are daily used, free of charge, for conducting religious services.  Any denomination is welcome, absolutely without cost, to conduct religious services, etc. over said station.

An interdenominational ‘Go to Church’ hour is conducted, free of charge, over this station.

…The facilities of the station are offered, free of charge, for any emergency use, and for all civic and charitable uses.[126]

“The Voice of Labor” seems predominately oriented toward developing local community relationships.  Moreover, “The Voice of Labor” asserted:

…that said station is furnishing a valuable public service to this community, free of charge, which is far more beneficial, convenient and helpful to this community than would be an occasional fragmentary broadcast which might under extraordinary conditions occasionally be heard in this locality from a ‘local’ licensed station in Shreveport, Louisiana or other out-of-state station broadcasting on the same frequency as is ‘The Voice of Labor.’[127]

…that ‘The Voice of Labor’ station does not impair, does not destroy and does not interfere with any interstate or foreign radio communication or transmission and that even though ‘The Voice of Labor’ station was not on the air that the people of Houston and of Harris County, Texas, would not be served with any satisfactory, reasonable or consistent radio entertainment by any licensed station broadcasting on a frequency of 1310 kilocycles during the hours of the day when ‘The Voice of Labor’ broadcasts on such frequency.

…That during the hours when ‘The Voice of Labor’ station is broadcasting the Federal Radio Commission and the Plaintiff are making no use of said 1310 kilocycle channel within the area served by ‘The Voice of Labor.’

…In the event at a future date the Federal Radio Commission licenses some other station at Houston, Texas, to broadcast interstate or foreign radio communications and the broadcast of ‘The Voice of Labor’ illegally interferes with such licensed station these Defendants will, upon notice of such illegal interference by ‘The Voice of Labor’ station, immediately discontinue such interference.[128]

U.S. communications regulation views localism and universal service as key public policy objectives.  The ruling in Gregg fostered neither of these objectives.  From a legal perspective, in considering whether federal suppression of “The Voice of Labor” is constitutional under the Commerce Clause, the ruling did not consider whether stations like “The Voice of Labor” were actually engaged in interstate commerce.  The facts of the case indicate that “The Voice of Labor” employees, listeners, and programmers did not have a substantial interstate relation relevant to the case.  On that basis and with appreciation for the natural sense of commerce as understood at the time the Constitution was written, the Court might have let “The Voice of Labor” continue broadcasting to the community about Houston, Texas.

One can imagine today equally compelling cases that would not be brought because the prospects for justice now appear so dim.  Suppose an inner city school in Atlanta wants to use a device utilizing short-range radio emissions to screen students for guns.  The device has been successful deployed in another country.  While it uses radio spectrum categorically forbidden for such devices in the US, there is no evidence that it causes harmful interference to any other radio use.  Suppose the Georgia Public Service Commission, unwilling to accept the FCC’s refusal to license the device, authorized the school to use the device.  Why should courts be unable to deliberate about an FCC enforcement action against this (federally) unauthorized radio use? 

Here’s another possibility.  Suppose that a poor, retired cowboy in Idaho lives twenty-five miles, by deeply rutted dirt roads, from the nearest oncological specialist.  He needs a weekly visual examination to confirm the shrinkage of a tumor.  The most cost-effective wireless video conferencing system under the geographic and meteorological conditions in Idaho uses radio spectrum allocated in the U.S. to broadcast television services.  The Idaho Department of Health and Welfare and the Idaho Public Utilities Commission,  in light of pressing rural healthcare needs, jointly declare that such systems can be used in Idaho so long as they do not cause harmful and irremediable interference to any other radio users. Why should courts be unable to deliberate about an FCC enforcement action against this (federally) unauthorized radio use?

For a more mundane but very contentious concern, consider mobile phone suppression technology.  Maintaining a certain aural atmosphere is an important concern in opera theatres, movie houses, courtrooms, and other places.  In such places, ringing mobile phones ringing are a disturbing and interfering sound.  Radio technology now available allows the organization that operates a space to suppress electronically mobile phone communications.  Mobile phone suppression technology is illegal in most developed countries, but permitted in Israel and Japan.  As of mid-2001, Hong Kong and Canada were considering legalizing mobile phone suppression.[129]  There is some evidence of low-level debate about this issue in the U.S.[130]  One might imagine state or local politics engaging with the issue and experimenting with different policies.  Why should the only forum for considering this issue in the U.S. be the Federal Communications Commission?[131]

The significance to radio communications of inarticulate Commerce Clause jurisprudence is growing. Wireless technology is developing rapidly, with costs plummeting and the range of applications expanding dramatically.  Such technology is being adopted quickly in many countries around the world.  Moreover, many countries are likely to permit short-to-medium-range radio services in spectrum bands where such services are not permitted in the U.S.  Geographic, demographic, and economic conditions vary significantly across U.S. states.  Federal radio regulation will not be able to respond completely, with no contested decisions, to the wide range of radio communications needs and opportunities that will be presented to U.S. state governments. Yet a simplistic, widely held, and scarcely deliberated view of the Commerce Clause’s meaning for U.S. radio regulation might prevent courts from ever seriously considering desperate pleas for justice.[132]

---

[1] The Commerce Clause is a name commonly used for a clause in Article I, Sec. 8, of the U.S. Constitution.  Article I., Sec. 8, enumerates powers of the federal government.  These powers include the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”.  This statement of federal power is called the Commerce Clause.

[2] Nelson and Pushaw (1999) pp. 79-86.

[3] Rubin and Feeley (1994) describes federalism as a “national neurosis,” while Rubin (1997) argues that federalism is enjoyable to discuss because it has long been and remains irrelevant to any real issues in the U.S.  That is not the case in Australia and Canada.  In those federations, constitutional clauses similar to the Commerce Clause of the U.S. Constitution have real, contemporary significance.  See Taylor (2001).

[4] Cf. Rubin (1997), which focus on human affiliations as a matter of political identity.  Williams (2002) emphasizes that rule of law does not mean “a society in which most or lots of issues are resolved by ‘law,’ i.e. rules created and enforced by the state, or by agencies using the power of the state.”  He points out that forming voluntary organizations is important to liberal democracy because such actions provide practice in working out relationships.  It is not necessary that the relationships themselves have intrinsic political significance, nor that they are alternatives to a particular type of political affiliation.

[5] Tocqueville (1835) argues that if persons in a democracy “did not acquire the practice of associating with each other in ordinary life, civilization itself would perish.”  Without the counterbalancing effect of growth in civic associations across a range of desires and objects, Tocqueville felt that more democratic societies would tend more toward torpor in sentiments and ideas.  See ibid, vol. 2, section 2, Chapter V.

[6] 21 F.2d 787.

[7] See Section II.B of the main paper.

[8] 29 F.2d 113, 114.

[9] 31 F.2d 448 at 451. For discussion of the Communications Amendment Act of 1982, see Section II.B of the main paper.

[10] Ibid at 453. The “radius of nuisance area” for a 50 watts station was listed as 300 miles.

[11] Ibid at 454 (first three sentences quoted are from the same paragraph), 456.

[12] Ibid at 455.

[13] 58 App.D.C. 386, 31 F.2d 630.

[14] 59 App.D.C. 125, 36 F.2d 111.

[15] 59 App.D.C. 129, 36 F.2d 115.

[16] 59 App.D.C. 333, 41 F.2d 422.

[17] 60 App.D.C. 79, 47 F.2d 670.

[18] 61 App.D.C. 311, 62 F.2d 850.

[19] 289 U.S. 266, 279, 53 S.Ct. 627, 633-4.

[20] 297 U.S. 650, 655, 56 S.Ct. 608, 609.

[21] 309 U.S. 134, 137, 60 S.Ct. 437, 439.

[22] 319 U.S. 190, 210, 63 S.Ct. 997, 1007.

[23] 374 U.S. 424, 430, 83 S.Ct. 1759, 1763, n. 6.

[24] 468 U.S. 364, 376, 104 S.Ct. 3106, 3115.

[25] Broyde v. Gotham Tower, 13 F.3d 994, 997.

[26] FCC (1995) at 727.

[27] Davis (1927) p. 29.

[28] Station WBT v. Poulnot, 46 F.2d 671, 675 (1931).

[29] “All radio communication, anywhere in the United States, travels actually or potentially across state lines, and even if certain radio electric wave energy, through an accident or otherwise, should lose its force before crossing the state line, yet it potentially interferes with other radio communication passing interstate.  Congress has assumed control of all communications by radio, acting through the Federal Radio Commission, which activity and continuously supervises all such communication.” Ibid at 672.  “There can be no doubt that communications by radio constitutes interstate commerce.”  Ibid at 675. 

[30] 5 F.Supp. 848.  On March 4, 1934, the Supreme Court decided Nebbia v New York, 291 U.S. 502, 54 S.Ct. 505.  This decision essentially eliminated the existing distinction between public and private businesses and effectively expanded the range of the Commerce Clause.  See Cushman (2000) pp. 1132-7.    

[31] 5 F. Supp. 848, 857.

[32] That at least is the argument of the main paper.

[33] Davis (1927) pp. 29-31, Zollmann (1927) pp. 102-3, “Note and Comment” (1928) p. 920, Taugher (1928) pp. 313-4.

[34] 35 Op. Attys. Gen. 126, reprinted in Zollmann (1930) pp. 292-8.  Citation from p. 292.

[35] Ibid. p. 293.

[36] 514 U.S. 549, 563-5, 619-25, 631-44, 115 S.Ct. 1624, 1632-3, 1659-61,1665-71 (1995) (Lopez) and 529 U.S. 598, 628-37, 120 S.Ct. 1740, 1760-4 (2000) (Morrison).

[37] 529 U.S. 848, 120 S.Ct. 1904 (2000).

[38] 22 U.S. 1, 190-4 (1824).

[39] California v. United States, 438 U.S. 645, 648, 98 S.CT. 2985, 2987 (1978).

[40] Title to coastal tidelands and the beds of navigable rivers belong to states as part of the constituting legal framework for states.  The beds of non-navigable rivers and other bodies of water are owned under the same general legal framework as for land ownership.  Others may have rights to the use of such water under legal doctrines such as the prior appropriation doctrine.  Acts such as the Desert Land Act of 1877 (43 USC §321) made water on federal lands subject to state laws of water appropriation.  

[41] California v. United States, 438 U.S. 645, 653, 98 S.CT. 2985, 2990 (1978).

[42] See 33 U.S.C. § 1344(a) and § 1362(7).

[43] 531 U.S. 159, 163, 121 S.Ct. 675, 678 (2001).  Acting under the Clean Water Act, the United States Army Corps of Engineers blocked this use of the site.

[44] In fact the majority stated, “We find § 404(a) [regulations interpreting the scope of waters covered by the Clean Water Act] to be clear, but even were we to agree with respondents, we would not extend Chevron deference here.”  Ibid at 172.  That statement means that the subsequent statements concerning the Constitutional questions in this case are dicta.

[45] Ibid at 182.

[46] Ibid at 192.

[47] Whether members of Congress merit in U.S. law this same type of respect is still an open question in some areas of law.  Categorizing statements as rational by virtue of their relation to particular institutions, times, and manners should not be done indiscriminately.  Certainly the writings of academics and government bureaucrats deserve no such respect.

[48] Ibid at 193,

[49] Ibid at 175.  33 USC § 1251(a)(7) states: “it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985.”

[50] Ibid at 179, quoting Senate Report No. 92-414, p. 95.

[51] Not all such uses do so.  Consider a farmer who lets pigs drink from a pond on his land.  Some Jewish and Muslim scholars might argue that the pond is polluted by this activity.  Yet if no other persons have the right or the need to use the water from the pond, surely that pollution does not effect a relationship between the farmer and anyone else.

[52] See Zollmann (1927).

[53] Thrasher v. City of Atlanta 173 S.E. 817, 825 (1934).

[54] For a review, see Cahoon (1990).

[55] See discussion in Smith v. New England Aircraft, 270 Mass. 511 515-20, 170 N.E. 385, 387-9 (1930) and Swetland v. Curtiss Airports Corp, 41 F.2d 929, 938-42 (1930).  Over congested parts of cities, towns, or settlements, the minimum height of flight was declared to be 1000 feet.

[56] See Cahoon (1990), esp. Sections IX and X.

[57] Other buildings in New York at the time reached 808, 792, 700, 625, and 612 feet into the sky.  See Smith v. New England Aircraft Co., 270 Mass. 511, 522, 170 N.E. 385, 389 (1930).

[58] This accident killed 14 persons and injured about 25 others.  For details, see Tauranac (1995) pp. 317-331.

[59] FAA Notice of Construction or Alternation of Objects Affecting Navigable Airspace, 14 CFR 77.13 (2002).

[60] Hamilton (1994) p. 266.

[61] FAA Notice of Construction, Alteration, Activation, and Deactivation of Airports, 14 CFR 157.3 (2002).

[62] Hamilton (1994) p. 270.

[63] The distinction between interstate and intrastate aviation was a major issue in deliberations about the Air Commerce Act of 1926.  See Downs (2001).

[64] See Swetland and Smith, supra.

[65] For a review, see, for example, Marcus (1984).

[66] For discussion, see Hamilton (1994).

[67] On disturbing radio spectrum, see above discussion of 35 Op. Attys. Gen. 126 (1926).

[68] Other scholars have briefly noted and dismissed this meaning of commerce with respect to the Commerce Clause.  See Barnett (2001) pp. 128-9; Nelson and Pushaw (1999) p. 19, 41; Lessig (1995) p. 141 n. 37.

[69] OED (1989), heading note for “commerce”.

[70] In a fascinating account of commercial morality in seventeenth century Dutch society, Whitman (1996) emphasizes the hospitality that Dutch Calvinist moralists in the seventeenth century extended to values found in Roman commercial law.  In England, where Roman law and Protestant theology had much less significance, the way “commerce” was understood helped to distinguish it from “unbrotherly” or “uncommunal” activities.

[71] Muldrew (1998) describes the period 1550-1580 in England as a period of rapidly increasing internal trade and consumption -- the most intensely concentrated period of economic growth before the late eighteenth century.   Muldrew explains that trade then was deeply connected to an intricate system of personal relations.  Credit meant not just money but social standing and character.  Given that the word “commerce” came into the English language about this time, these developments shed light on the meaning of that word.

[72] The King James Version, as well as a number of other translations, can be searched at The Bible Gateway, online at http://www.biblegateway.org.  “Commerce” was derived from the Latin “commercium”.  This term, and related forms, does not occur in the Vulgate.  An online search of the Vulgate is available at ARTFL Project, online at http://www.lib.uchicago.edu/efts/ARTFL/public/bibles/vulgate.search.html

[73] See Vulgate text, ibid.  For an online Latin dictionary, see the Perseus Digital Library, online at http://www.perseus.tufts.edu/cgi-bin/resolveform?lang=Latin.  The early Greek texts use, in Matthew 22:5 and John 2:16 respectively,  “emporia” and “emporion”.  These terms mean trade or a place of trade.  See interlinear Greek, Strong’s Concordance, and Vine’s Expository Dictionary linked to verses online at Blue Letter Bible, http://www.blueletterbible.org/index.html.  A translation in Rheims in 1582 used  “merchandise” and “traffick” in the same respective passages.  See Douay-Rheims translation at The Unbound Bible, online at http://unbound.biola.edu/.

[74] See various Bible translations at links mentioned in footnotes above.

[75] For online searches of Shakespeare’s oeuvre, see the Rhyme Zone, http://www.rhymezone.com/shakespeare/ and Matty Farrow’s search, http://www.it.usyd.edu.au/~matty/Shakespeare/test.html

[76] Twelfth Night, Act 3, Scene 4.

[77] Troilus and Cressida, Act 3, Scene 3.

[78] Ibid, Act 1, Scene 3.

[79] Hamlet, Prince of Denmark, Act 3, Scene 1.

[80] Note as well that the expressed causes for the Declaration contain only one reference to trade.

[81] Hirschman (1977) p. 60.

[82] Ibid., p. 61, quoting William Robertson, View of the Progress of Society in Europe (1769).

[83] Federalist No. 42, online at http://memory.loc.gov/const/fed/fed_42.html

[84] Federalist No. 6, online at http://memory.loc.gov/const/fed/fed_06.html

[85] Ibid.

[86] Federalist No. 22. online at http://memory.loc.gov/const/fed/fed_22.html

[87] 22 U.S. 1, 189-90 (1824).

[88] Marshall seems to have attached the adjectives “commercial” and “trading” to “intercourse” only for emphasis in the context of a specific description.   “It has, we believe, been universally admitted, that these words [‘with foreign nations, and among the several States, and with the Indian tribes.’] comprehend every species of commercial intercourse between the United States and foreign nations.  No sort of trade can be carried on between this country and any other, to which this power does not extend.” Ibid at 193-4.  “What is commerce ‘among’ them [states]; and how is it to be conducted?  Can a trading expedition between two adjoining States, commence and terminate outside each?  And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third?  Commerce among the States must, of necessity, be commerce with the States.” Ibid. at 196.   

[89] Ibid at 229-30.

[90] 96 U.S. 1, 9 (1877).

[91] 105 U.S. 460 (1881).

[92] Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 356, 7 S.Ct. 1126, 1127 (1887).

[93] The telegraph provided control that allowed rail lines to be single-tracked.  In 1890, the U.S. rail system was 73% single-tracked.  The additional cost of double-tracking the system would have been about one billion dollars in 1890.  For comparison, the total book value for construction of all railroads and for the equipment on them was about $8 billion at that time.  See Field (1992) pp. 406-9.

[94] Huge stockyards and slaughtering operations developed in Chicago and other major mid-Western cities. Ibid. pp. 410-2.

[95] Field (1998) p. 167, which also notes:

Physical proximity to the exchange was no longer a prerequisite for a trader whose strategies depended on knowing what was happening on the floor, reacting to it, transmitting trading instructions, and having them executed and confirmed within very short time spans.

These were important changes in relationships of trade.  More generally, see ibid. pp. 163-9.

[96] Lubrano (1997) pp. 118-20.

[97] Blondheim (1994) p. 7.

[98] Blondheim’s impressively detailed history of news wire services noted:

The Associated Press replaced the great party organs and popular metropolitan newspapers as the primary source of national news.  Unlike predecessors such as the Washington National Intelligencer or the New York Weekly Tribune, the wire service was not a local institution.  Wire service reports were a compilation of dispatches, by hundreds of anonymous local agents, printed verbatim in all the country’s major newspapers simultaneously.  And thus they were not perceived as representing any local institution or interest.

Ibid. p. 195.

[99] Compare the Court’s description to this newspaper description more than 30 years earlier:

Washington is as near to us now as our up-town wards.  We can almost hear through the Telegraph, members of Congress as they speak.  The country now will be excited from its different capitals. Man will immediately respond to man.  An excitement will thus be general, and cease to be local.  Whether good or ill is to come from all this, we cannot foresee, but that the Telegraph is to exert an important bearing over our political and social interest, no man can doubt.

Ibid. p. 191, quoting the New York Express from 1846.  Developments from the time that account was written to the time the Court issued its opinion confirmed what the journalist regarded as indubitable.

[100] To get a sense for the extent to which analysis of commerce got unmoored from the eighteenth century understanding of commerce, consider this analysis in a 1928 law review article examining the law of radio communication (Taugher (1928) p. 314):

[quoting Pensacola] “…The powers thus granted to Congress are not confined to the instrumentalities of commerce known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances.”  It would seem, therefore, that the analogy between the radio wave as an instrumentality of interstate commerce and the telegraph is a much closer one than that between the telegraph and the railroad, as the electro-magnetic energy which is the basis of communication in the case of both radio and telegraphy by wire has already received judicial cognizance as a means of commercial intercourse.

The telegraph’s use of electromagnetic energy to transmit messages has little to do with the intercourse related to the telegraph.  Locomotives’ use of iron railroad tracks likewise has little to do with the intercourse associated with railroads.

[101] A more critical approach to this narrative is needed.  What does it mean to say that the U.S. (or the European Union) is a “single market”?  The contextual significance of such references are usually promotion of a particular set of contemporary economic policies.  In attempting to give this use of “market” additional historical significance, Lessig (1995) p. 138 suggests:

There is no simply way to describe this difference in the extent of integration, and no handy way to quantify it.  But I don’t believe that we need data to make the point that I want to make here:  That integration in the sense I suggest has increased; that more operates in a national rather than local market; and that this change in the extent of the market properly has consequences for the scope of federal and state power.

Consider one long-run economic trend that Lessig neglects: the growth of (monetized) services in the economy.   Transactions for services tend to be more individualized, more localized, and involve more relationship-specific investments than transactions for goods.   That the “market” for health care now is much more national than the “market” for corn was in the mid-nineteenth century is not at all clear.  The same seems to be the case for the economy as a whole.  On trends in shared symbolic experience and cultural homogeneity, see Galbi (2001b).

[102] Cushman (2000) p. 1130.

[103] Heart of Atlanta Motel v. United States 379 U.S. 241, 85 S.Ct. 348 (1964), Katzenbach v. McClung 379 U.S. 294, 85 S.Ct. 377 (1964), Daniel v. Paul 395 U.S. 298, 89 S.Ct. 1697 (1969), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740 (2000).

[104] See, e.g. Feyerabend (1975), Rorty (1979), Lyotard (1984), Derrida (1988), MacIntryre (1988), and Fish (1999).

[105] For an analysis of utterability constraints, see Lessig (1998).   For an additional attempt to address utterability constraints in a scholarly context, see Galbi (2001b), Section III.

[106] PL 103-322, September 13, 1994, 108 Stat 1796, Sec. 40001.

[107] Forms that instruct the respondent to identify “gender” as male or female are a fine example of the first meaning of “gender.”

[108] 42 U.S.C. § 13981(d)(1).

[109] As part of such inquiry, one might ask whether the significance of violence in intercourse considered from a national perspective differs significantly from the significance considered in states as separate entities.  Considering Commerce Clause cases from a “commerce is intercourse” approach provides better connection to existing precedent, more focus on case-specific facts, and a more tightly defined framework for analysis than the “structural necessity” approach proposed in Harsch (2001). The “commerce is intercourse” approach has similar advantages relative to the suggestion in Merritt (1998) p. 1210, that, under the Commerce Clause, “Congress should have the power to regulate whenever the states cannot do the job effectively.” 

[110] 529 U.S. 598, 628-36, 120 S.Ct. 1740, 1760-4, esp. fn. 2.

[111] Ibid. at 636.

[112] Merritt (1998) p. 1213.  These descriptions were made in the context of discussion of Commerce Clause cases in general.  They appear to me to be directly relevant to some aspects of judicial reasoning in the principal dissents in Morrison and in Lopez.

[113] See National Center for Health Statistics (NCHS), “Deaths: Final Data for 1999” available online at http://www.cdc.gov/nchs/about/major/dvs/mortdata.htm  NCHS is a broad source of statistics with considerable relevant expertise.  Its website provides comprehensive descriptions of the data and documentation of statistical methods used.   Compare these statistics and its citation to a statement in the principal dissent in Morrison: “Supply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers, see S.Rep. No. 101-1545, at 36…”  Morrison, supra, 120 S.Ct. 1740, 1764.  One should wonder at the plausibility and meaning of the implication that roughly 50-100% of females that die from assault are women who die “at the hands of domestic abusers.”   FBI homicides reports for 1999 indicate that 1,218 females were killed, inside or outside the home, by intimate partners, defined as “current or former spouses, boyfriends or girlfriends.”  See Rennison (2001) p. 2.  One should interrogate the symbolic domination that creates the statistics cited in Morrison, and effaces those cited infra.

[114] Being sent far from home for long periods to risk death in wars is a culturally salient form of disposition historically associated with maleness in the U.S.  While the U.S. now has a sex-integrated military, the Military Selective Service Act currently requires only males to register.  The Supreme Court has upheld such discrimination (see Rostker v. Goldberg, 435 U.S. 57, 101 S.Ct. 2646 (1981); both the majority opinion and the two sharp dissents lack any serious consideration of men as male, or of the social construction of maleness).  That a large share of military jobs currently require physical characteristics highly disproportionately found among males seems doubtful.  Women currently serve in military positions very closely related to combat.   The Military Selective Service Act might be understood as current national law supporting norms of male disposability.   Disposal of persons in the criminal justice system also fosters stereotypes of male disposability.  In 1997, 1.23% of males ages 20 and over were in federal and state prisons under a sentence longer than 1 year.  The comparable figure for women is 0.07%.  See Bureau of Justice Statistics, Correctional Populations in the United States, 1997, Table 1.8, p. 4 (online at http://www.ojp.usdoj.gov/bjs/abstract/cpus97.htm) and U.S. Census Bureau, Current Population Reports P25-1130, Table 2, p. 46 (online at http://www.census.gov/prod/1/pop/p25-1130/).  This sex disparity, which concerns some of the most disadvantaged persons in the U.S. and has attracted little political concern, is typically legitimated via an essentialist stereotype of males that re-enforces their disposability.  Violence directed at males by virtue of their sex is recorded in some of the earliest written human records (see Exodus 1:16, 22) and across a variety of cultures (see Jones (2000), who notes that “gendercide, at least when it targets males, has attracted virtually no attention at the level of scholarship or public policy.” (p. 186)).   Domestic violence against males has received virtually no public policy attention, perhaps because of archaic and overbroad stereotypes that presume women not capable of the full range of human emotions and not capable of devising tools to attack men who on average are physically larger and stronger.  A highly credible recent study found that among heterosexual partners women were slightly more likely than men to “use one or more acts of physical aggression and to use such acts more frequently,” and that 38% of those physically injured by a partner were men.  See Archer (2000) p. 651.   The narrow focus of the literature on gender and the Violence Against Women Act might indicate that violence toward males continues at a relatively high level because of gender animus that has become a truly national problem. Cf. Hagen (2001), Resnik (2001) and Bonner (2002).

[115] For those interested in considering additional statistics, I suggest starting with those in the footnote above.

[116] Donne, John (1623), “For whom the Bell Tolls,” online at http://www.incompetech.com/authors/donne/bell.html

[117] Cushman (2000) p. 1145-6, quoting letter from Justice Jackson to his friend Sherman Minton.

[118] Strong relationships of similar type are not necessarily conflicting.  A person may give herself in love fully to another person.  Yet doing so might complement, rather than conflict with, that person loving God with all her heart, and with all her soul, and with all her might.  See Ruth 1:16.  U.S. Term Limits v. Thornton, 514 U.S. 779, 115 S.Ct. 1842 (1995), presents a challenging case concerning the nature of political relationships.  See, in particular, the intellectually impressive dissenting opinion.

[119] Merritt (1998) suggests that, under the Commerce Clause, “Congress should have the power to regulate whenever the states cannot do the job effectively….” (p. 1210).  Harsch (2001) similarly argues that courts “ought to ask whether a solution at the federal level is necessary, because the states and the federal government are politically structured in such as way as to preclude the states from dealing with the problem at hand.” (p. 985).  While these approaches make sense for policy inquiry, practical legal needs seem rather different.  These approaches move far from the text of the Commerce Clause and provide little general structure for positive inquiry into facts.  What type of analysis would these approaches imply for considering federal regulation of all radio use?  What value would precedent offer under that kind of analysis?

[120] 514 U.S. 549, *557, 115 S.CT. 1624, 1629.

[121] Internal citations omitted.

[122] Among other problems, there is little basis for defining a relevant threshold value for cost-benefit analysis.  See Lessig (1995) p. 208.

[123] Consider fatherhood.  Legally, fatherhood in the U.S. today is defined in terms of a DNA test for paternity, i.e. particular effects of a particular sex act.  Moreover, the consequences of this sex act can be effectively nothing more than a legal obligation to pay money, i.e. child support.  Despite this legal regime, many persons still believe that fatherhood cannot be reduced to sex and money. 

[124] The literature known as new institutional economics provides considerable insight into relationships.  See Williamson (1985).  Commerce, understood as intercourse – ongoing, systematic relationships – is associated with relationship-specific investment (getting to know persons).  Thus the mere functioning of a national commodity market does not imply anything about such relationships.  Certain understandings of markets place markets in direct opposition to human relationships, e.g. Polanyi (1944).   On the other hand, a common mistake is to consider markets too abstractly.  Understanding the relationships relevant to a particular law requires a case-specific enquiry into real circumstances.

[125] Brown (2001) reviews the debate about federal criminal law and emphasizes the importance of analysis of jurisdictional elements.

[126] 5 F. Supp. 848, 853 (1934) fn. 1.

[127] Ibid.

[128] Above three sentences are from ibid. at 858, fn. 2.

[129] See “Canadians debate use of cell-phone ‘jammers’”, USA Today, April, 23, 2001; online at http://www.usatoday.com/life/cyber/tech/review/2001-04-23-cell-phone-jam.htm

[130] See the online “Talkback” section at the end of the article, “Silencing Cell Phones,” techtv, Aug. 16, 2001; online at http://www.techtv.com/news/culture/story/0,24195,3342655,00.htm

[131] Thus far public discussion of this issue at the FCC seems to consist only of posting a web page indicating that the Communications Act of 1934, as amended, does not permit the use of transmitters to prevent or jam the operation of wireless devices.  See http://wireless.fcc.gov/services/cellular/operations/blockingjamming.html

[132] Mercy and truth can meet over radio regulation.  The Superior Court of Pennsylvania recently stated:

Empathy for others woes and travails may evoke sympathy, but not jurisdiction.  Rather, the decision of whether a court is seized with the ability to exercise subject matter jurisdiction must be predicated upon a careful statutory and constitutional foundation. 

See Fetterman v. Green, 455 Pa.Super.639,646,689 JA.2d 228, 293 (1997).  If courts follow that statement, this paper should help offer hope for easing some woes and travails.