The Odd Clauses by Jay Wexler Read Free Book Online

ESA does not purport to tell toads what they may or may not do.”
    Still, though, even the modern Court has imposed some restrictions on Congress’s power to make laws using its commerce-clause power. After about sixty years of letting Congress do whatever it wanted, the Court in a 1995 case called
United States v. Lopez
suddenly cut back on Congress’s power under the commerce clause when a slim majority of the justices held that the legislature could not make it illegal for someone to possess a gun within five hundred feet of a school. I remember the day the case came down. I was a first-year law student, and that day my constitutional law professor came into the class and launched into a long diatribe about the decision. The diatribe lasted for maybe five class sessions. Since we hadn’t studied the commerce clause at all, none of us had any idea what our professor was talking about, but we did understand that something big had happened. Five years later, the Court made it clear that it wasn’tjoking around in
Lopez
when it struck down the Violence Against Women Act as being outside Congress’s commerce clause power. Since then, the Court has eased up a bit on its commerce-clause smushification project, holding in 2005 that Congress did have the power to enforce controlled-substances laws against local growers of medical marijuana in California, although it’s quite possible that this decision reflected the justices’ views on smoking weed a lot more than their feelings about the proper limits of congressional power.
    Having made this little detour through the Constitution, it is now time to return to Mars and one of Congress’s often overlooked powers:
The Congress shall have Power To . . . fix the Standard of Weights and Measures.
Even Congress itself has tended to overlook the weights and measures clause; one prominent constitutional historian has pointed out that the weights and measures power was the very last power that Congress ever exercised. Not that Congress hadn’t considered exercising the power quite early on in the history of the Republic; indeed, the question of whether the Congress should fix the standard of weights and measures and, more specifically, whether it should adopt the metric system that the French first adopted in the late eighteenth century, was a question of great importance in early US history. The story of how Congress has dealt with the possibility of adopting the metric system over the course of the past two hundred years is a fascinating one that nicely illustrates some important aspects of the American legislative system, including the critical issue of how citizens should allocate responsibility for policymaking failures among the various branches of the national government.
    As early as 1790, President George Washington urged Congress to consider standardizing the nation’s weightsand measures. Congress, in turn, requested Washington’s secretary of state, Thomas Jefferson, to write a report on the matter. Jefferson wrote that report, urging Congress to standardize weights and measures and describing two possible plans, one involving the traditional crazy feet-and-pounds system and the other using the crisp and rational French metric system. A congressional committee apparently recommended adopting the metric system, but nothing ever came of it. In 1816 President James Madison brought the issue up again with Congress, and Congress once again asked the secretary of state to prepare a report. This time the secretary of state was John Quincy Adams. Four years later, Adams submitted his 250-page monster of a report. In excruciating detail, Adams traced the history of weights and measures through the Greeks and the Hebrews, quoted at length from the Prophet Ezekiel, and discussed the effect that the great flood (the one that Noah had to build an ark for) must have had on any preexisting uniformity of weights and measures.
    Adams’s