Article

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

Employing a straightforward textual reading of the Commerce Clause, which, unlike other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal commerce power and a fundamental limitation upon that power. Fearing that Congress would use the commerce power as a means of discriminating in favor of some states at the expense of others, the Constitutional Convention ratified a provision intended to preclude Congress from enacting nonuniform regulations of commerce. For purely stylistic reasons, that provision was ultimately broken into two different clauses: the Port Preference Clause and the Uniformity Clause, but the framers understood those clauses to be one in purpose, and to have the combined effect of categorically prohibiting the nonuniform exercise of the commerce power. 

Because the framers narrowly conceived the commerce power as extending only to the imposition of excises and duties and the regulation of navigation and shipping, their decision to divide the mandate against the nonuniform regulation of commerce into two, more narrowly drawn clauses seemed inconsequential. The Uniformity Clause, which requires all excises and duties to be uniform throughout the United States, and the Port Preference Clause, which precludes Congress from enacting regulations of navigation or shipping that favor the ports of one state over those of another, were sufficient in their day to fully protect against the nonuniform exercise of the commerce power. In today’s world, however—a world in which the commerce power has achieved a drastically broader ambit—if we continue to read the Uniformity and Port Preference Clauses narrowly and literally, and if we fail to imply a general uniformity constraint on the commerce power, then we fatally undermine the fundamental constitutional principle that pervaded the Constitutional Convention that Congress must not be permitted to use the commerce power to favor some states at the expense of others. This Article contends that we should interpret the Constitution in a manner that preserves this fundamental precept and ensures that it remains relevant and vital in the twenty-first century and beyond.

Cities, Economic Development, and the Free Trade Constitution

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court’s implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city’s use of eminent domain for economic development purposes under the Fifth Amendment’s Takings Clause. The Article’s city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the “dormant” commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.

Or, Even, What the Law Can Teach The Philosophy of Language: A Response to Green’s Dworkin’s Fallacy

This essay is a response to the important central theme of Michael Green’s recent article, Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), which considers the relationship between the philosophy of language and the philosophy of law. Green argues forcefully that a number of theorists with quite different viewpoints commonly maintain a connection between the two which turns out to be unfounded. It is accepted that it is wrong to assume such a connection, but it is suggested that Green has failed to recognise the connection that can be established between the two disciplines due to the particular way in which law as a practice uses words.

The reasons given by Green for seeking to maintain a distinction between ordinary language practice and the language practice of the law are considered and rejected in part I of the essay. The general conclusion is reached that, irrespective of which position is adopted in the philosophy of law, at the point of judgment the philosophy of law and the philosophy of language are inextricably linked in being concerned to account for the same practice.

Part II of the essay considers the basic issues for the philosophy of language addressed in Green’s article, which are concerned with the search for the mechanism which links a particular meaning to a word. One reading of Wittgenstein’s rule skepticism, supported by Dennis Patterson, is to reject the existence of any mechanism interrupting the direct connection between the capacity we possess in our language practice and the capacity we possess in the practice to which our language refers. Patterson provides another target for Green’s allegation that theorists who take a position in the philosophy of law from their position in the philosophy of language are committing a fallacy. However, it is pointed out that within the Patterson-Wittgenstein position, there is no possibility of moving from one position to the other since both positions are already necessarily connected.

The remaining discussion in Part II then explores the apparently common connection between law and language established within the practice of judgment and within the general view of the nature of language favoured in Patterson’s reading of Wittgenstein. It is argued that Wittgenstein’s philosophical method may maintain a connection between law and language, and the positions adopted within their respective philosophies, but is incapable of resolving the controversy between competing views of how law/”law” should be understood. By contrast, the practice of judgment is used precisely to resolve controversy. Although this judgment is concerned primarily with a specific part of the law, its significance extends to how we regard the philosophical endeavours that need to provide an account of it. This provides lessons for both the philosophy of language and the philosophy of law.

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