Abstract
The argument throughout this study is concerned, not so much to give a definitive statement of what the law is at any one point of time on any one topic, as to trace theories and techniques in constitutional interpretation leading to such statements of law. Consequently, in discussing judicial definitions of interstate trade and commerce we are, for the moment, concerned less with the result of such definitions than with the style of approach to them.1
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References
The main provisions as regards trade and commerce of the respective constitutions discussed here are: — United States Constitution, Article 1:8:3; The Commonwealth of Australia Constitution Act, 1900, (63 and 64 Vict. c. 12) ss. 51(1) and 92; The British North America Act, 1867, (30 and 31 Vict. c. 3), s. 91(2). There are numerous other provisions in each constitution which affect trade and commerce in greater or lesser degree — e.g. United States Constitution, Art. 1:10:2 (Imports — Exports Clause) or Canadian Constitution, s. 92(10) (Steamships, Railways and Public Works) or Australian Constitution, s. 99 (Commonwealth not to give preference) — but these concern the specific definition of the subject more than the overall approach to it. Discussion of such other provisions where relevant to the theme will therefore be made under later headings.
9 Wheat, i (1824).
Id. at 189-90.
Such fluctuations are attributable in large measure to the fact that, “During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American law and life was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states.” Wickard v. Filburn, 317 U.S. in, 121 (1942), per Jackson J. The use of similar concepts by the High Court of Australia, the Supreme Court of Canada, and the Judicial Committee of the Privy Council, is discussed below. It may well be that the persistence in Australia and Canada of analytical concepts now abandoned in the United States, is because the main emphasis of constitutional interpretation.
Wickard v. Filburn, 317 U.S. in, 124 (1942), per Jackson J.
McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Cf. Stone C.J. in United States v. Wrightwood Dairy Co., 315 U.S. no, 119 (1942) — “The commerce power … extends to those activities intrastate which so affect interstate commerce … as to make regulation of them appropriate means to the attainment of a legitimate end ….”
Wickard v. Filburn, supra, note 5, 317 U.S. at 125.
329 U.S. 90, 104 (1946).
[1950] A.C. 235, 310 (P.C.)
Field Peas Marketing Board v. Clements & Marshall Pty. Ltd., 76 Commw. L.R. 414, 429 (1947) per Dixon J. See also R. v. Wilkinson, 26 Austl. L.J. 104 (1952).
Phillips, Trade, Commerce and Intercourse, in Else-Mitchell (Ed.), Essays on the Australian Constitution 210, 218 (1952).
76 Commw. L.R. 1 (1948) (H.C.).
Id. at 381. See also the opinion of Starke J., at 306-07.
28 Commw. L.R. 530 (1920). The overruling of the central part of the Mc Arthur Case doctrine by James v. The Commonwealth, [1936] A.C. 578 (P.C.) did not affect this part of the opinion.
28 Commw. L.R. at 549.
Anderson, Freedom of Inter-state Trade: Essence, Incidence and Device under Section 92 of the Constitution, 33 Austl. L.J. 294 (1959). See also Lane, Trade and Commerce Power: Constitution S. 51(i), 34 Austl. L.J. 99, 106 (1960) and citations collected ibid., n. 95.
Bank of New South Wales v. The Commonwealth, 76 Commw. L.R. 1, 381 (1948) (H.C.).
92 Commw. L.R. 565 (1954).
Id. at 587.
It may be argued that the element of “movement” is of greater significance under s. 92 of the Australian Constitution (“trade commerce and intercourse among the States … shall be absolutely free.”) than under s. 51 (i) (the positive grant of legislative power to the Federal Parliament with respect to trade and commerce). It is true that some of the leading cases-e.g. James v. The Commonwealth, [1936] A.C. 578, 632 (P.C.) — postulate that “trade and commerce” is narrower in coverage in s. 92 than it is in s. 51(i). I cannot avoid finding this dubious, both conceptually, and under the usual rules of interpretation; no doubt some of the confusion is traceable to the now rejected holding of W. & A. Mc Arthur Ltd. v. Queensland, 28 Commw. L.R. 530 (1920) that s. 92 did not apply to the Commonwealth. In any event I would suggest that both this issue and that of the significance of the element of “movement” become moot where a criterion of “substantial economic effect” is adopted. Historical support for the adoption of this argument may be found in Beasley, The Commonwealth Constitution: Section 92, Its History in the Federal Conventions, 1 U.W. Austl. Ann. L. Rev. 97, 433-34 (1948–50).
(1881) 7 App. Cas. 96 (P.C.)
The Judicial Committee has similarly placed restrictive interpretations on other federal powers having relation to trade and commerce; see e.g. A.-G. for Canada v. A.-G. for British Columbia, [1930] A.C. 111 (P.C.), as regards the Dominion’s powers over fisheries.
(1881) 7 App. Cas. at 112.
A.-G. for Ontario v. A.-G. for Canada, [1947] A.C. 127 (P.C.)
(1881) 7 App. Cas. at 113.
(1883) 9 App. Cas. 117 (P.C.)
[1916] 1 A.C. 588 (P.C.)
[1925] A.C. 396 (P.C.)
Id. at 410. The reference to “civil rights” relates of course to the power conferred on the Provinces under s. 92(13) of the B.N.A. Act, 1867 exclusively to make laws in relation to “Property and Civil Rights in the Province.”
[1957] Can. Sup. Ct. 198, 205.
Id. at 211.
Murphy v. C.P.R, Co., [1958] Can. Sup. Ct. 626.
Id. at 638.
Id. at 632.
Supra, note 18
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© 1964 Martinus Nijhoff, The Hague, Netherlands
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Mackinnon, V.S. (1964). The Definition of Interstate Commerce. In: Comparative Federalism. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8910-1_1
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