Wednesday, October 8, 2008

On a clear night, you can cross state lines to see Uranus

"He (Obama) voted for nearly a billion dollars in pork barrel earmark projects, including, by the way, $3 million for an overhead projector at a planetarium in Chicago, Illinois. My friends, do we need to spend that kind of money? --John McCain at last night's debate.

At least that's what I think he said. I was playing that drinking game where you take a swig every time McCain says "my friends" so I may have been a bit out of my head by the time this matter came up.

If McCain and Obama had been debating purely for my benefit, the Arizona Senator would have, at this point, turned to the Chicagoan and said, "Senator Obama, you taught Constitutional law at an elite law school. Could you please tell us where, in your opinion, the Constitution--which only grants the federal government enumerated powers--gives you or anyone in Congress authority to dedicate funds to a local planetarium?"

I would have been fascinated, but I imagine the folks who have called it the dullest debate ever would have been even more nonplussed. (Here, by the way, is some background on the Adler Planetarium projector.)

And I don't have to do a lot of research to figure out what part of the Constitution Obama would have pointed to. Any time there is anything done by Congress that seems out of the realm of what they are technically allowed to do, it is a manifestation of the Commerce Clause, Article I, section 8:

"The Congress shall have Power *** To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

There is a long and somewhat acrimonious history concerning this provision, which I'll try to sum up in a couple of sentences. For years, the Supreme Court construed this clause quite narrowly, even striking down efforts by Congress to end child labor and establish a minimum wage, see Hammer v. Dagenhart, 247 U.S. 251 (1918) and Adkins v. Children's Hospital, 261 U.S. 525 (1923). This type of judicial activism didn't go over well with Franklin Roosevelt, and when he was elected President he replaced Justices as they retired with men more friendly to New Deal ideals. The decisive victory in this battle came in 1942, when in Wickard v. Filburn (317 U.S. 111) the Court ruled that the contours of the Commerce Clause could even extend to corn grown by a farmer for his own use since the cumulative effects if lots of farmers did that would have a broad effect on interstate commerce. Although there have been a few cases since then where the Court has tried to pull in the reins a little, that's basically where we stand now, Congress can pass legislation under the authority of its power to regulate commerce "among the several states" even if the interstate commerce aspects are pretty remote.

I should mention that one obvious benefit to a broad interpretation of the Commerce Clause is that it was this provision of the Constitution--rather than the Fourteenth Amendment's guarantee of equal protection--that Congress leaned on in the sixties when it passed the Civil Rights Act. Thus, when the bigots who ran the now gone Heart of Atlanta Motel--just a couple of miles from where I write this--argued that it was their business and they could so decline to give rooms to African-American travelers, the Supreme Court pointed out that lodgings in downtown Atlanta adjacent to a pair of Interstate highways obviously serve mostly people from outside Georgia. And so in 1964, Heart of Atlanta Motel v. United States (379 U.S. 241) put one more deserved nail into the coffin of American segregation. (A great book to read on this is Richard C. Cortner's Civil Rights and Public Accommodations: The Heart of Atlanta Motel and McClung Cases, 2001).

Which brings us back to the Adler Planetarium. Obviously it gets a lot of visitors from other states. I went to their website to see if there happened to be any figures on just how many folks from the other forty-nine states visit, and while I didn't find that, I found that they already have up a statement about McCain's comments. (May I just add as someone who was born and raised in the great City of Chicago that the Republican did not lose any votes over this? Never mind simply voting for Obama, the staff at Adler is probably preparing to name a constellation after him.)

Anyway, if you think that it's a bit absurd that the power of Congress can be argued to extend over a projector at a planetarium just because the place gets out of state visitors, I have a little story to tell you. Not long ago at my petting zoo, the USDA inspector paid her annual visit. She's a delightful woman, not one of those dreaded big, bad bureaucrats. We got to chatting about how my little place, which has only friendly domestic animals, is required to have a regular USDA inspection, while over in South Carolina, where the state laws concerning keeping exotic wild animals are rather lax, people literally have ferocious lions on their property and are not subject to any federal oversight. Why not? It's because my petting zoo is open to the public and people visit from around the country, while the South Carolina lion keepers are private landowners who don't open their premises to admission paying guests.

So if you have a petting zoo open for business with friendly goats, you get visited by the USDA, but if you keep a nasty lion on your private property, you don't see the feds. And this is all because of the Commerce Clause. (This assumes, of course, that the lion owner isn't in violation of any other U.S. law in keeping his cat.)

Let me close by mentioning another thing that occurred to me when McCain made his comment. You know the phrase everything old is new again? Would you believe the matter of whether federal money should be used for something like the Adler Planetarium's mission has actually come up before? A former colleague of Obama's on the law faculty of the University of Chicago, the late, great, David P. Currie, told briefly in The Constitution in Congress: The Jeffersonians 1801-1829 the story of how early in the nineteenth century Congress considered a proposal for the federal government to build an observatory. Citing a House committee's 1813 report, Currie mused, "The United States, if the committee had its way, were going into the business of astronomy" (p. 310). Currie goes on to ponder whether this could be sanctioned under the Commerce Clause--after all, using an observatory to establish the positions of heavenly bodies could be a help to navigation, which is directly related to commerce--but he also suggests that perhaps the power of Congress "to fix the Standard of Weights and Measures" (Art. I Sec. 8) might come into play. Currie somewhat cops out on the matter, ending his discussion with "Would it have been constitutional? Figure it out for yourself" (p. 312).

Oh those wacky University of Chicago law school professors. They're either asking you for help to figure out if an observatory is constitutional, or asking for your vote so they can, through their legislative or executive efforts, assert that it is.

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