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This article confuses Marine Power under Law of Nations with regulating commerce. Navigation Acts were enacted under the nations Marine Power and not via Power to Regulate Commerce. The Marine Power of Nations is where the power over enrollment and licensing comes from which Marshall in Gibbons ruled was the valid power Congress was exercising under the Coasting Act.
The above is absolutely untrue:
"The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial [p190] intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.
If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late."
Clearly Marshall is saying that Navigation of vessels through American waters is something Congress has the power to regulate under the Commerce Clause. Emt1619 ( talk) 17:40, 19 June 2014 (UTC) — Preceding unsigned comment added by Emt1619 ( talk • contribs) 17:36, 19 June 2014 (UTC)
The Commerce Clause is Article 1, Section 8, Clause 1. Article 1, Section 8, Clause 3 is the Elastic Clause. Anyone taking the time to check that against the Constitution would notice that. --Lemcconnell wrote without signing
I am afraid that the unsigned ids correct. The Commerce Clause, beginning with To regulate commerce with... , is a part of Clause 1. Clause 2 begins with To exercise executive Legislation in all cases whatsoever... and Clause 3 begins with To make all Laws which shall be necessary and proper...
Clause 1 contains a lot of congressional powers within it, but each one is not individually organized as "clause". The constitution specifically states only 3 clauses in Sec 8, Art I.
Wiki for Article One of the United States Constitution puts it like this, as well as my Poly Sci text that I am reading right now (Govt. By The People. Magelby, O'Brien, Light, Peltason, Cronin) and several other websites. I am editing it to clause 1. Seary6579 ( talk) 01:17, 26 February 2008 (UTC)
You should try spelling it correctly next time. When I was in Constitutional Law classes in the 80s and 90s, that term certainly was used. One two-part course was split into pre-37 and post-37 courses. It was a very pivotal point in the history of American Federal Constitutional law. My unnecessary Google search for "constitutional revolution of 1937" returned "about" 645,000 hits. The Revolution of '37 is quite orthodox and should most certainly be mentioned. I have edited the article to once again reference the Revolution, and have provided at least one citation of a book published well before 'W' was elected (a book I happen to have on my shelf as well). Fingusernames 07:42, 9 September 2007 (UTC)
I think the legal interpretation of this case which I just reversed was wrong. It did not reverse Lopez at all, that case was explicitely distinguished on the basis that marijuana was commercial activity. Nor did it further expand the scope of the power, it was straightforward application of post new-deal precedent. See here for a more sober analysis of the case. Psychobabble 21:50, 16 Jun 2005 (UTC)
If I remember right, Raich grows marijuana for herself, and thus the last phrase in that section can be made stronger: it never enters commerce at all, let alone interstate commerce. — Tamfang 19:57, 13 June 2006 (UTC)
Psychobabble, I've restored my previous change that adds the "Significance" section. You reverted the whole thing on the basis of POV. You have a point, and I've adjusted the language to make it more neutral. But the new material describes why Commerce Clause decisions are still important and controversial, provides more references, and there was at least one factual error in the previous version. If you're still concerned about balance, then let's talk. -- Lockley 05:36, 2 August 2005 (UTC)
Apparently, there is an argument that the primary meaning of the word "commerce" in the late eighteenth century -- and the intent of the Commerce Clause -- was not "trade" as today, but more generally "affairs" or "interaction". See e.g. [1]. Here is the most relevant paragraph:
Crust 21:01, 9 November 2005 (UTC)
There should also be a mention somewhere that this clause is the justification for the Clean Water Act
Under the "significance" heading, the articles states "The Tenth Amendment states that the federal government of the United States has only the powers specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people." The 10th Amendment does not say "specifically" delegated powers, and this is contentious in constitutional law. The phrase is somewhat biased in the article because I don't believe there has ever been a lasting precedent that voted one way or the other. This goes back to Jefferson/Hamilton and is still debated in the Supreme Court. 131.156.75.125 ( talk) 23:40, 18 March 2008 (UTC)
Since the tenth amendment was written and passed after the adoption of the Constitution, does that imply that the Commerce Clause was broader in scope before passage of the Tenth Amendment? If it is the Tenth Amendment that is supplying the limitations on the Commerce Clause power, why then do the early cases that limit the scope of the commerce clause focus so much attention on the language of the commerce clause, instead of the of the language of the Tenth Amendment? If the Tenth Amendment reserves powers to the states, or to the people, why then cannot the people approve their exercise by the federal government?
Jvonkorff ( talk) 00:49, 19 August 2008 (UTC)
I moved the Justice Thomas's quotation from his dissent in Gonzalez v Raich down to the section on later decisions at the end. I think that it is out of place in a discussion of the central importance of the commerce clause. Jvonkorff ( talk) 12:36, 25 August 2008 (UTC)
I believe that the significance Part I, II, and III structure, to which I have just added, is somewhat cumbersome. But I can't think of a better way of handling this right now. Comments please. I've added material from United States v Rands and I would like to add material from the history of this issue to present time. There is an article on "navigable servitudes" which consists of just a few sentences, that seems related, but I wouldn't give it this name. The topic here is between navigable waters, eminent domain, and water law. Any ideas on how to approach this in terms of organization
Jvonkorff ( talk) 00:07, 22 September 2008 (UTC)
This article concerns almost entirely the interstate commerce clause. For example, though Indian tribes generally retain rights not explicitly abrogated in treaties or legislation/regulation when Congress hasn't shown an intent to abrogate them, the Indian commerce clause is much more broad than the interstate commerce clause since the SCOTUS has interpreted the Indian commerce clause to mean that Congress has plenary authority to legislate in Indian affairs. On the other hand, it has limited the interstate commerce clause in US v. Lopez.
Basically, we need to add information about the Indian commerce clause to this article, or create separate articles for the Indian commerce clause, the foreign commerce clause, and the interstate commerce clause. 216.27.182.48 ( talk) 05:25, 17 November 2008 (UTC)
I don't know enough about law to write the Indian commerce clause article, but this ruling, especially paragraph 34, explains the differences very well. 64.81.59.139 ( talk) 05:26, 17 November 2008 (UTC)
This article was vandalized on 26 September 2008, resulting in a laughably bizarre error in the first major quote, and NO ONE CAUGHT IT until I saw the error this morning. This article needs indefinite semi-protection immediately. -- Coolcaesar ( talk) 17:05, 2 March 2009 (UTC)
Balls - "The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states that this Commerce Clause power, and all of the other balls enumerated powers," - not editing cos I don't feel like sticking around to defend it. —Preceding unsigned comment added by 204.198.73.177 ( talk) 15:38, 2 October 2009 (UTC)
The article on the Dormant Commerce Clause states that the clause is used to strike down state laws that inflict on federal governments interstate commerce clause, however our section implies that it is used to strike down federal clauses - at least to my reading.
-- 155.247.134.211 ( talk) 19:23, 9 November 2009 (UTC)
I think a section of this article should be included on abuse/misuse of the Commerce Clause as a general justification of federal laws otherwise not enumerated. Mal7798 ( talk) 22:01, 15 February 2010 (UTC)
Rather than calling it "abuse" it could be a section on controversial power and execution (This is a well-established section in many Wikipedia articles). Then it wouldn't need a consensus to agree on the examples, just proper citation of sources for common or contested criticisms. I found this to be lacking because regardless of what one believes to be the extent of the commerce clause it has been controversial and publicly debated to this day. Particularly in how the commerce clause has become a default go-to justification for powers when there are many other Constitutional and legal precedents.
This article is in serious need of total rewriting by someone fully familiar with the topic - hopefully a professor of constitutional law. It is disorganized, erratic, does not deal fully with major elements (such as the extent of the states' power to affect interstate commerce), and discusses wholly tangential or irrelevant subjects (such as the nature of Indian tribal government). —Preceding unsigned comment added by 173.16.252.154 ( talk) 22:30, 6 April 2010 (UTC)
The section about sex offenders is also incorrect. The Supreme Court will be deciding an ex post facto issue of SORNA, and not whether the law comports with the commerce clause. —Preceding unsigned comment added by 128.239.47.135 ( talk) 15:03, 26 May 2010 (UTC)
I have edited the entire "New Deal" section as it was rather convoluted and did not flow well. Lweeks ( talk) 19:58, 24 April 2012 (UTC)
I think this article (and this talk page) needs to make some reference to the so-called "General Welfare" clause, which was pivotal in the 1937 shift in interpretation regarding the constitutional limits of Federal powers.
One very useful source can be found at:
http://constitutionalawareness.org/genwelf.html
It is a scholarly article by John Bugler, about "The General Welfare Clause and how, since 1937, it has been abused to undermine Constitutional government." Tripodics ( talk) 18:44, 27 December 2010 (UTC)
Ah yes, you my friend have very large testes indeed! 68.43.17.191 ( talk) 03:40, 23 July 2011 (UTC)
Under "The Rehquist Court", last main paragraph, RE: 10th Amendment "in the last two decades" this phrase needs to be more specific about the dates. The last two decades from today will be different than the last two decades prior to 50 years from now, so who will know which last two decades this means? -- THE FOUNDERS INTENT PRAISE 17:02, 1 June 2012 (UTC)
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Summary
The original intent of the Commerce Clause (Article I, Section 8, Clause 3 of the Constitution) was to remove/reduce burdens and obstructions to the free-flow of trade in commerce among the States.[1] The original intent is still alive and well today - clearly understood by the Supreme Court in its Dormant Commerce Clause jurisprudence[2], but the Court selectively ignores the original intent across the rest of the Commerce Clause corpus juris. Congress regularly transgresses the limitations put on its police powers to exercise an unconstitutional power (i.e enacting criminal statutes beyond those of the four powers) in violation of 1. the original intent of the Commerce Clause; 2. principles of federalism and dual sovereignty; and 3. the Tenth Amendment. The very foundation of our Rule of Law has been subverted and "sunk" into a Serbonian Bog of illegal legislation[3].
Footnotes. 1. Florida v. United States HHS, 780 F. Supp. 2d 1256, 1276-77 (ND FL 2011).
2. Tenn. Wine & Spirits Retailers v. Thomas, 139 S. Ct. 2449, 2460 (2019)
3. Milton, John. 1969. Paradise Lost. Four Harvard Classics: The Complete Poems of John Milton. Harvard University Press. — Preceding unsigned comment added by 174.247.81.94 ( talk) 05:23, 1 November 2022 (UTC)
Commerce Clause received a peer review by Wikipedia editors, which is now archived. It may contain ideas you can use to improve this article. |
This article is rated C-class on Wikipedia's
content assessment scale. It is of interest to the following WikiProjects: | |||||||||||||||||||||||||||||||||||||||||||||||
|
This article confuses Marine Power under Law of Nations with regulating commerce. Navigation Acts were enacted under the nations Marine Power and not via Power to Regulate Commerce. The Marine Power of Nations is where the power over enrollment and licensing comes from which Marshall in Gibbons ruled was the valid power Congress was exercising under the Coasting Act.
The above is absolutely untrue:
"The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial [p190] intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.
If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late."
Clearly Marshall is saying that Navigation of vessels through American waters is something Congress has the power to regulate under the Commerce Clause. Emt1619 ( talk) 17:40, 19 June 2014 (UTC) — Preceding unsigned comment added by Emt1619 ( talk • contribs) 17:36, 19 June 2014 (UTC)
The Commerce Clause is Article 1, Section 8, Clause 1. Article 1, Section 8, Clause 3 is the Elastic Clause. Anyone taking the time to check that against the Constitution would notice that. --Lemcconnell wrote without signing
I am afraid that the unsigned ids correct. The Commerce Clause, beginning with To regulate commerce with... , is a part of Clause 1. Clause 2 begins with To exercise executive Legislation in all cases whatsoever... and Clause 3 begins with To make all Laws which shall be necessary and proper...
Clause 1 contains a lot of congressional powers within it, but each one is not individually organized as "clause". The constitution specifically states only 3 clauses in Sec 8, Art I.
Wiki for Article One of the United States Constitution puts it like this, as well as my Poly Sci text that I am reading right now (Govt. By The People. Magelby, O'Brien, Light, Peltason, Cronin) and several other websites. I am editing it to clause 1. Seary6579 ( talk) 01:17, 26 February 2008 (UTC)
You should try spelling it correctly next time. When I was in Constitutional Law classes in the 80s and 90s, that term certainly was used. One two-part course was split into pre-37 and post-37 courses. It was a very pivotal point in the history of American Federal Constitutional law. My unnecessary Google search for "constitutional revolution of 1937" returned "about" 645,000 hits. The Revolution of '37 is quite orthodox and should most certainly be mentioned. I have edited the article to once again reference the Revolution, and have provided at least one citation of a book published well before 'W' was elected (a book I happen to have on my shelf as well). Fingusernames 07:42, 9 September 2007 (UTC)
I think the legal interpretation of this case which I just reversed was wrong. It did not reverse Lopez at all, that case was explicitely distinguished on the basis that marijuana was commercial activity. Nor did it further expand the scope of the power, it was straightforward application of post new-deal precedent. See here for a more sober analysis of the case. Psychobabble 21:50, 16 Jun 2005 (UTC)
If I remember right, Raich grows marijuana for herself, and thus the last phrase in that section can be made stronger: it never enters commerce at all, let alone interstate commerce. — Tamfang 19:57, 13 June 2006 (UTC)
Psychobabble, I've restored my previous change that adds the "Significance" section. You reverted the whole thing on the basis of POV. You have a point, and I've adjusted the language to make it more neutral. But the new material describes why Commerce Clause decisions are still important and controversial, provides more references, and there was at least one factual error in the previous version. If you're still concerned about balance, then let's talk. -- Lockley 05:36, 2 August 2005 (UTC)
Apparently, there is an argument that the primary meaning of the word "commerce" in the late eighteenth century -- and the intent of the Commerce Clause -- was not "trade" as today, but more generally "affairs" or "interaction". See e.g. [1]. Here is the most relevant paragraph:
Crust 21:01, 9 November 2005 (UTC)
There should also be a mention somewhere that this clause is the justification for the Clean Water Act
Under the "significance" heading, the articles states "The Tenth Amendment states that the federal government of the United States has only the powers specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people." The 10th Amendment does not say "specifically" delegated powers, and this is contentious in constitutional law. The phrase is somewhat biased in the article because I don't believe there has ever been a lasting precedent that voted one way or the other. This goes back to Jefferson/Hamilton and is still debated in the Supreme Court. 131.156.75.125 ( talk) 23:40, 18 March 2008 (UTC)
Since the tenth amendment was written and passed after the adoption of the Constitution, does that imply that the Commerce Clause was broader in scope before passage of the Tenth Amendment? If it is the Tenth Amendment that is supplying the limitations on the Commerce Clause power, why then do the early cases that limit the scope of the commerce clause focus so much attention on the language of the commerce clause, instead of the of the language of the Tenth Amendment? If the Tenth Amendment reserves powers to the states, or to the people, why then cannot the people approve their exercise by the federal government?
Jvonkorff ( talk) 00:49, 19 August 2008 (UTC)
I moved the Justice Thomas's quotation from his dissent in Gonzalez v Raich down to the section on later decisions at the end. I think that it is out of place in a discussion of the central importance of the commerce clause. Jvonkorff ( talk) 12:36, 25 August 2008 (UTC)
I believe that the significance Part I, II, and III structure, to which I have just added, is somewhat cumbersome. But I can't think of a better way of handling this right now. Comments please. I've added material from United States v Rands and I would like to add material from the history of this issue to present time. There is an article on "navigable servitudes" which consists of just a few sentences, that seems related, but I wouldn't give it this name. The topic here is between navigable waters, eminent domain, and water law. Any ideas on how to approach this in terms of organization
Jvonkorff ( talk) 00:07, 22 September 2008 (UTC)
This article concerns almost entirely the interstate commerce clause. For example, though Indian tribes generally retain rights not explicitly abrogated in treaties or legislation/regulation when Congress hasn't shown an intent to abrogate them, the Indian commerce clause is much more broad than the interstate commerce clause since the SCOTUS has interpreted the Indian commerce clause to mean that Congress has plenary authority to legislate in Indian affairs. On the other hand, it has limited the interstate commerce clause in US v. Lopez.
Basically, we need to add information about the Indian commerce clause to this article, or create separate articles for the Indian commerce clause, the foreign commerce clause, and the interstate commerce clause. 216.27.182.48 ( talk) 05:25, 17 November 2008 (UTC)
I don't know enough about law to write the Indian commerce clause article, but this ruling, especially paragraph 34, explains the differences very well. 64.81.59.139 ( talk) 05:26, 17 November 2008 (UTC)
This article was vandalized on 26 September 2008, resulting in a laughably bizarre error in the first major quote, and NO ONE CAUGHT IT until I saw the error this morning. This article needs indefinite semi-protection immediately. -- Coolcaesar ( talk) 17:05, 2 March 2009 (UTC)
Balls - "The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states that this Commerce Clause power, and all of the other balls enumerated powers," - not editing cos I don't feel like sticking around to defend it. —Preceding unsigned comment added by 204.198.73.177 ( talk) 15:38, 2 October 2009 (UTC)
The article on the Dormant Commerce Clause states that the clause is used to strike down state laws that inflict on federal governments interstate commerce clause, however our section implies that it is used to strike down federal clauses - at least to my reading.
-- 155.247.134.211 ( talk) 19:23, 9 November 2009 (UTC)
I think a section of this article should be included on abuse/misuse of the Commerce Clause as a general justification of federal laws otherwise not enumerated. Mal7798 ( talk) 22:01, 15 February 2010 (UTC)
Rather than calling it "abuse" it could be a section on controversial power and execution (This is a well-established section in many Wikipedia articles). Then it wouldn't need a consensus to agree on the examples, just proper citation of sources for common or contested criticisms. I found this to be lacking because regardless of what one believes to be the extent of the commerce clause it has been controversial and publicly debated to this day. Particularly in how the commerce clause has become a default go-to justification for powers when there are many other Constitutional and legal precedents.
This article is in serious need of total rewriting by someone fully familiar with the topic - hopefully a professor of constitutional law. It is disorganized, erratic, does not deal fully with major elements (such as the extent of the states' power to affect interstate commerce), and discusses wholly tangential or irrelevant subjects (such as the nature of Indian tribal government). —Preceding unsigned comment added by 173.16.252.154 ( talk) 22:30, 6 April 2010 (UTC)
The section about sex offenders is also incorrect. The Supreme Court will be deciding an ex post facto issue of SORNA, and not whether the law comports with the commerce clause. —Preceding unsigned comment added by 128.239.47.135 ( talk) 15:03, 26 May 2010 (UTC)
I have edited the entire "New Deal" section as it was rather convoluted and did not flow well. Lweeks ( talk) 19:58, 24 April 2012 (UTC)
I think this article (and this talk page) needs to make some reference to the so-called "General Welfare" clause, which was pivotal in the 1937 shift in interpretation regarding the constitutional limits of Federal powers.
One very useful source can be found at:
http://constitutionalawareness.org/genwelf.html
It is a scholarly article by John Bugler, about "The General Welfare Clause and how, since 1937, it has been abused to undermine Constitutional government." Tripodics ( talk) 18:44, 27 December 2010 (UTC)
Ah yes, you my friend have very large testes indeed! 68.43.17.191 ( talk) 03:40, 23 July 2011 (UTC)
Under "The Rehquist Court", last main paragraph, RE: 10th Amendment "in the last two decades" this phrase needs to be more specific about the dates. The last two decades from today will be different than the last two decades prior to 50 years from now, so who will know which last two decades this means? -- THE FOUNDERS INTENT PRAISE 17:02, 1 June 2012 (UTC)
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I have just modified 2 external links on Commerce Clause. Please take a moment to review my edit. If you have any questions, or need the bot to ignore the links, or the page altogether, please visit this simple FaQ for additional information. I made the following changes:
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After February 2018, "External links modified" talk page sections are no longer generated or monitored by InternetArchiveBot. No special action is required regarding these talk page notices, other than
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Cheers.— InternetArchiveBot ( Report bug) 03:15, 9 November 2016 (UTC)
A discussion is taking place to address the redirect Interstate transport. The discussion will occur at Wikipedia:Redirects for discussion/Log/2021 October 9#Interstate transport until a consensus is reached, and readers of this page are welcome to contribute to the discussion. signed, Rosguill talk 20:41, 9 October 2021 (UTC)
Summary
The original intent of the Commerce Clause (Article I, Section 8, Clause 3 of the Constitution) was to remove/reduce burdens and obstructions to the free-flow of trade in commerce among the States.[1] The original intent is still alive and well today - clearly understood by the Supreme Court in its Dormant Commerce Clause jurisprudence[2], but the Court selectively ignores the original intent across the rest of the Commerce Clause corpus juris. Congress regularly transgresses the limitations put on its police powers to exercise an unconstitutional power (i.e enacting criminal statutes beyond those of the four powers) in violation of 1. the original intent of the Commerce Clause; 2. principles of federalism and dual sovereignty; and 3. the Tenth Amendment. The very foundation of our Rule of Law has been subverted and "sunk" into a Serbonian Bog of illegal legislation[3].
Footnotes. 1. Florida v. United States HHS, 780 F. Supp. 2d 1256, 1276-77 (ND FL 2011).
2. Tenn. Wine & Spirits Retailers v. Thomas, 139 S. Ct. 2449, 2460 (2019)
3. Milton, John. 1969. Paradise Lost. Four Harvard Classics: The Complete Poems of John Milton. Harvard University Press. — Preceding unsigned comment added by 174.247.81.94 ( talk) 05:23, 1 November 2022 (UTC)