Justice Harlan’s Multicultural Theory of the Commerce Clause?

Law scholars have recently published the text of Justice John Marshall Harlan’s lectures on constitutional law.

An excerpt, of course related to Indians:

Our relations with the Indians in this country are of a peculiar character. Here is the power given to Congress to regulate commerce with the Indian tribes. The Indian tribes are a peculiar people, and our relations with them are peculiar. We sometimes have made treaties with the Indians, but our making treaties with them does not stand exactly upon the footing of our treaties with foreign nations. We have been in the habit, since the foundation of the government, of making treaties with the Indians, and then when we wanted another treaty, compelled them to make another. If we want a treaty modified, why the chiefs are brought here, and broadcloth clothes put on them, and they are shown all the sights around Washington, and we get out of them such a treaty as we want. They are the wards of the nation, not citizens of the United States. They are dependent upon us. They are mere wards, but the men who framed the Constitution knew what infinite trouble there would be if the subject of our relations with the Indians were not put in Congress, but left with the states.

Therefore, the Congress of the United States may say exactly what may go to the Indians, and what may not. Congress may say that no spirituous liquors may be carried into the Indian nations. Congress may prescribe the rule by which you are to be governed in your trading with them. Congress may say, you shall not trade with this tribe at all, or if you do trade with it, it shall be under certain circumstances, and it was necessary to put it there because no state had exclusive interests or control over the Indians. They were scattered throughout the country, and it would never have done at all, as bad as has been the conduct of the United States towards that dying race, to have left it to the states. The states would have dealt with them in a way that might have shocked humanity, as some of them did, and although they have been fairly well treated in their general control by the United States, it is a race that is disappearing, and probably within the lifetime of some that are now hearing me there will be very few in this country. In a hundred years, you will probably not find one anywhere, so that clause of the Constitution about regulating commerce with the Indian tribes will amount to nothing.

A very robust defense of Congressional plenary power over Indian affairs, along the lines the Court was going in United States v. Kagama. But the next paragraph is interesting:

That is not the only race that is disappearing. I may digress this far, and I only do so for the purpose of indicating the immense reach of this commerce power after awhile. To my mind, to my apprehension, it is as certain as fate that in the course of time there will be nobody on this North American continent but Anglo-Saxons. All other races are steadily going to the wall. They are diminishing every year, and when this country comes to have, as it will before a great many years, two or three hundred million of people, when states that are now sparsely populated become thickly populated, we will then appreciate, or the country will then appreciate more than it does now, the immense importance of the common government of the whole country having power to protect trade between the states and with foreign nations, beyond the power of any state for its selfish purposes to harass it.

Pages 132-33.

Hmmm. So if the non-whites will all die off, then the 300 million people of the United States (virtually all white) will really need the commerce clause and the national power that comes with it. Ok, so what does that say about a nation of 300 million where whites are soon going to be in the minority? Would Justice Harlan say national power is more or less necessary to govern in that circumstance? It seems to me that the national power to regulate Indian affairs remains viable and important so long as there are Indian nations. It turned out that Justice Harlan was wrong, as so many were in the 19th and early 20th centuries, that the vanishing race would vanish.

Interestingly, Justice Harlan appears to regret his dissent in Elk v. Wilkins (or maybe just saying that as a dissenter, he was inherently wrong by virtue of the vote):

Judge, does that include Indians?
No. The case of Elk against Wilkins—I wish I knew the volume—they were considered an exception.488 You will find a very learned opinion there by the majority of the Court. It was the case of an Indian who had left his tribe and came into the state of Nebraska, intending to become a part of that people, and the majority of the Court thought that he could not become a citizen of the United States. That case was apart from this Amendment. They were wards of the nation, and they thought he could not become a citizen of the United States. I had the misfortune to differ from the Court upon that question, and of course I was wrong.

Pages 266-67.

2 thoughts on “Justice Harlan’s Multicultural Theory of the Commerce Clause?

  1. Brian L. Frye July 22, 2013 / 5:27 pm

    Thanks for your comments, Matthew. I’m glad you found the law lectures interesting. I think they complicate our understanding of Harlan & what he believed. As for his comments on Elk v. Wilkins, I suspect that his mea culpa was intended as tongue in cheek.

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