Tuesday, February 15, 2011
Horse-and-Buggy Law for the Information Age
In his book Undaunted Courage, a history of the Lewis and Clark expedition, Stephen E. Ambrose illustrated the hardship of their journey and the debate over the value of the Louisiana Purchase with a discussion on the state of transportation.
It really hadn’t changed in two thousand years, Ambrose said. People were still getting around essentially as they had in the time of Julius Caesar: riding on horses or in animal-drawn carriages of some sort or sailing on ships powered by the wind. Things had been that way for so long that hardly anyone imagined they could ever be different.
That was in 1805, a scant 17 years after the ratification of the U.S. Constitution. The next half-century saw transportation revolutionized by the development of the steam engine and railroad, which suddenly made the world a smaller place indeed. In the same period Morse invented the telegraph, which did for communication what the other two did for transportation. (The founding fathers could have benefited from the telegraph back in 1788. When New Hampshire became the ninth state to ratify the Constitution, making it the law of the land, they had to put an express rider on a horse to get the word out.)
Progress in transportation and communication continued unabated, with the development of the automobile, airplane, daily newspaper, telephone, radio, television and internet. As a consequence, one of the least controversial and least debated clauses of the Constitution became one of the most important.
Back in 1788, most commerce — aside from the trade in slaves and tobacco — was local. If a farmer produced a surplus of butter, he might sell some to his neighbors. Even in the large cities, most of the food consumed was produced nearby. The power to regulate interstate commerce was seen largely as a reasonable way for the federal government to serve as an umpire in trade disputes between the states or to build lighthouses to reduce the incidence of shipwreck.
One of the debates at the time the Constitution was up for ratification was whether a central federal government could effectively govern an area as large and populous as the United States. It was a fair question at the time, even though the large and populous country in question was 13 states and three million people. After all, look how long it would have taken to get a judicial order (never mind a militia) from the as-yet unnamed capital to Georgia or Massachusetts.
The technological changes in transportation and communication settled the question. Once people could move around and communicate more quickly, commerce grew correspondingly and became more of a regional, if not national affair. That, in turn increased the need for government oversight at a federal level in areas never imagined. When the butter came from local farms, there was no need for federal oversight; not so when it came from a factory in Chicago buying cream from Wisconsin and taking orders from corporate headquarters in New York.
It has become fashionable for conservatives to complain that the interstate commerce clause has been stretched to cover just about everything, but given how dramatically national commerce has changed in 222 years, how could it be otherwise? The men who wrote and approved the Constitution almost certainly didn’t anticipate the magnitude of that change, but they understood that change there would be; that’s why the powers granted to Congress are described in general terms. A functional society needs laws that allow general principles to be applied to specific and changing circumstances. Without that flexibility, we’d be stuck in the 18th Century forever.