The Commerce Clause, a View from the Right (Egads!) and Relevance Today

[Cool Hand]

Below is a link to a guest editorial in the National Review Online from May 2000 about the Supreme Court's decision in United States v. Morrison, which struck down The Violence Against Women Act as unconstitutional. Persons who are unfamiliar with constitutional law or who are not legal scholars can be forgiven for mistakenly concluding that the case must be reflective of some judicial misogyny. Of course, in reality, sexism had nothing to do with the case. It was a landmark decision not because it was a judicial reaction to Congress' having passed a law providing for civil actions arising from violence committed against women, but rather because it was only the second time since 1937 that the Supreme Court had recognized that Congress' power to legislate actually has some limits under the commerce clause, which had virtually been written out of existence as an enumeration of Congress' powers and authority.

The author's editorial comment at the bottom is interesting to note. Keep in mind he wrote this four years ago, as the last Presidential election was entering high gear. This President's very likely being able to nominate two or three appointees to the U.S. Supreme Court during this administration could have the very profound effect of restoring some reasonable limits to Congress' legislative power. As the author notes, we very much continue to live with the results of FDR's court packing plan and his New Deal, inasmuch as Congress continues to legislate matters which should rightfully remain within the ambit of exclusive state control. Except for the Supreme Court's landmark decision in United States v. Lopez, striking down the Gun Free School Zones Act in 1995, never since the 1930s had there been any practical limits on Congress' legislative power. If someone in Congress could introduce a bill or an amendment to a bill or a law on the floor, it could become the law of the land, without challenge to its authority.

Wisely, the Renquist Court found two cases in which the result was "Enough!" It is a sad commentary on the nation's embrace of expansive Congressional powers when one of those cases is merely a 5-4 decision.

A newly constituted Supreme Court might find itself one day facing additional opportunities to explain and define further limits to Congress' power, restoring some substantive meaning to the commerce clause. It is difficult to believe that before the 1930s, there actually were widely accepted limits.

The founders certainly had in mind that Congress was to have little legislative effect on the daily goings-on within the several states. None could have foreseen how Congress and the Supreme Court during most of the 20th Century would utterly disregard the concepts of enumerated and limited powers. Getting Congress to mind its own business is good for all persons who value balance in federal vs. state powers, be they liberal, conservative, moderate, or other.

The link and the several cases are worth the read. This fundamental constitutional issue will likely resurface in this and the next decade.

The Renquist Court vs. The New Deal

Cool Hand

[beyelzu]

I had already heard about Morrison. I remember people talking about the case at the time. I think a little federalism might very well be a good thing. I worry about possible ramifications of a strict interpetation of the commerce cause, because obviously there are plenty of laws that are completely outside a strict interpetation of the clause and could be ruled unconstitutional.

Although, it is not really an reinterpetation of the law, it is a dramatic departure from decades of "nocalls" up until now.

[D. Scarlatti]

"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse." - Gibbons v. Ogden

Sorry, that was awful, but I couldn't resist.

[Cool Hand]

Originally Posted by beyelzu

I had already heard about Morrison. I remember people talking about the case at the time. I think a little federalism might very well be a good thing. I worry about possible ramifications of a strict interpetation of the commerce cause, because obviously there are plenty of laws that are completely outside a strict interpetation of the clause and could be ruled unconstitutional.

Although, it is not really an reinterpetation of the law, it is a dramatic departure from decades of "nocalls" up until now.

Bey, "a little federalism" might be one of the bigger understatements I've read all year. Federal legislation into mundane matters that the founders likely never foresaw or intended their republic's ever interfering in has been so pervasive during our lifetimes that it is difficult to imagine life without it. That it is true is precisely the lament of those who are glad to see the Supreme Court finally check Congress' overreaching.

Strict interpretation of the commerce clause is a phrase one hears seldom. That's because until Lopez was decided in 1995, the Supreme Court had been unwilling to recognize since the New Deal that the commerce clause might actually mean anything at all. After issuing a string of decisions torturing the meaning of the commerce clause, the Supreme Court effectively gave Congress carte blanche to regulate anything and everything, without even making any attempt to determine whether the subject matter of the legislation was within the purview of the enumerated powers delegated to Congress under Article I of the Constitution. Finally, the Renquist Court cried "foul" and resurrected the long-dead commerce clause and breathed life into it once again.

Your next to last sentence speaks directly to the point of enumerated powers. I find it troubling. I take it to mean that essentially you note that you are worried the Supreme Court might actually honor the spirit and the letter of the Constitution, rather than allow the prevailing politics of the day to determine what is or isn't within Congress' authority. You seem to be giving your tacit approval to the notion of disregarding the limited powers doctrine and placing unchecked trust in the wisdom of Congress. Perhaps Mark Twain's quip is appropriate to remember sometimes. "Suppose you were an idiot... And suppose you were a member of Congress... But I repeat myself."

The founders created a government of limited powers. Congress has only the powers specifically enumerated in Article I. The Constitution is quite explicit in that regard. Since the late-1930s, Congress and the Supreme Court have been unwilling to recognize that notion until recently.

The editorial writer above forecasts that two or three new justices might be willing to give new life to the once-believed dead commerce clause. That's the whole point. I posted it because although it was written in 2000, today it is just as relevant as it was then.

Cool Hand

[edit: Bey's quote altered at his request to correct a typo]

[Cool Hand]

Originally Posted by D. Scarlatti

"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse." - Gibbons v. Ogden

Sorry, that was awful, but I couldn't resist.

Proud of yourself, aren't you?

Cool Hand

[D. Scarlatti]

Pardon?

[beyelzu]

Originally Posted by Cool Hand

Bey, "a little federalism" might be one of the bigger understatements I've read all year. Federal legislation into mundane matters that the founders likely never foresaw or intended their republic's ever interfering in has been so pervasive during our lifetimes that it is difficult to imagine life without it. That it is true is precisely the lament of those who are glad to see the Supreme Court finally check Congress' overreaching.

Strict interpretation of the commerce clause is a phrase one hears seldom. That's because until Lopez was decided in 1995, the Supreme Court had been unwilling to recognize since the New Deal that the commerce clause might actually mean anything at all. After issuing a string of decisions torturing the meaning of the commerce clause, the Supreme Court effectively gave Congress carte blanche to regulate anything and everything, without even making any attempt to determine whether the subject matter of the legislation was within the purview of the enumerated powers delegated to Congress under Article I of the Constitution. Finally, the Renquist Court cried "foul" and resurrected the long-dead commerce clause and breathed life into it once again.

***nothing to see here(thanks CL)*** I understand the history of the law more or less. Obviously, not as well as you do, but my understanding is pretty good for a layperson. I also understand the ramifications of the of the Renquist Court's ruling in Morrison.

Your next to last sentence speaks directly to the point of enumerated powers. I find it troubling. I take it to mean that essentially you note that you are worried the Supreme Court might actually honor the spirit and the letter of the Constitution, rather than allow the prevailing politics of the day to determine what is or isn't within Congress' authority. You seem to be giving your tacit approval to the notion of disregarding the limited powers doctrine and placing unchecked trust in the wisdom of Congress. Perhaps Mark Twain's quip is appropriate to remember sometimes. "Suppose you were an idiot... And suppose you were a member of Congress... But I repeat myself."

The founders created a government of limited powers. Congress has only the powers specifically enumerated in Article I. The Constitution is quite explicit in that regard. Since the late-1930s, Congress and the Supreme Court have been unwilling to recognize that notion until recently.

My point was that our system of government will be fundamentally altered by a strict interpetation of the commerce clause. I am unsure as to the scope of ramifications of this ruling. For example with a strict interpetation of the constitution is the civil rights act of 1964 actually constitutional, I dont think would be and that bothers me. While I think that Jim Crow laws were obviously unconstitutional, having the federal govenment outlaw discrimination is a good thing.

The editorial writer above forecasts that two or three new justices might be willing to give my life to the once-believed dead commerce clause. That's the whole point. I posted it because although it was written in 2000, today it is just as relevant as it was then.

Cool Hand

uh, I understood that.

I just find it ironic that as the european union moves closer together, we could be moving farther apart. I think that a strict interpetation of the commerce clause would seriously fuck our federal government and would lead to a fracturing of the country along geograpic and cultural lines. I think you would see less monoculture and although some people might think it is a good thing, I am not so sure. Also, although I am a little l libertarian on lots of issues, I dont think that state's rights is the way to go. I mean shit, a strict interpetation of the constitution allows for seccession on the same grounds of states' rights and thus Lincoln fought a war of aggression.

[Cool Hand]

Originally Posted by D. Scarlatti

Pardon?

Nevermind. I probably saw a slight where there was none intended on your part. I apologize for imputing such intent. I was being unnecessarily defensive due to differences I perceived bleeding across threads. Sorry.

Cool Hand

[Cool Hand]

Originally Posted by beyelzu

My point was that our system of government will be fundamentally altered by a strict interpetation of the commerce clause. I am unsure as to the scope of ramifications of this ruling. For example with a strict interpetation of the constitution is the civil rights act of 1964 actually constitutional, I dont think would be and that bothers me. While I think that Jim Crow laws were obviously unconstitutional, having the federal govenment outlaw discrimination is a good thing.

I agree. Of course, it was fundamentally altered from its original incarnation as the nation grew and evolved. Nevertheless, it remains a constitutional government. We are a nation of laws, not of men. Without that foundation, fundamental changes in the law occur with the political wind.

New individual rights, or those the founders did not place in the original constitution, have been secured by amending the constitution. They have also been created by disregarding it. Whether the rights secured under the latter method have had a beneficial effect on society in the aggregate or not is clear in some cases, and is open to debate in others. Nevertheless, the beneficial societal ends do not justify the detrimental means of disregarding the constitutional foundation of our nation.

uh, I understood that.

I just find it ironic that as the european union moves closer together, we could be moving farther apart. I think that a strict interpetation of the commerce clause would seriously fuck our federal government and would lead to a fracturing of the country along geograpic and cultural lines. I think you would see less monoculture and although some people might think it is a good thing, I am not so sure. Also, although I am a little l libertarian on lots of issues, I dont think that state's rights is the way to go. I mean shit, a strict interpetation of the constitution allows for seccession on the same grounds of states' rights and thus Lincoln fought a war of aggression.

Sorry to suggest you didn't understand. I'm not trying to insult your intelligence.

Your observation about the irony of the EU's growing closer vs. our nation's allegedly moving further apart is interesting. I'm not so sure our nation is moving apart.

Please understand that I do not embrace the familiar "state's rights" arguments brought by the likes of George Wallace and Roy Moore. I do not believe they are the necessary implication of a recognition of the doctrine of enumerated powers. I trust that you and others recognize that I am not advocating succession or the return to Jim Crow.

Cool Hand

[beyelzu]

Originally Posted by Cool Hand

I agree. Of course, it was fundamentally altered from its original incarnation as the nation grew and evolved. Nevertheless, it remains a constitutional government. We are a nation of laws, not of men. Without that foundation, fundamental changes in the law occur with the political wind.

New individual rights, or those the founders did not place in the original constitution, have been secured by amending the constitution. They have also been created by disregarding it. Whether the rights secured under the latter method have had a beneficial effect on society in the aggregate or not is clear in some cases, and is open to debate in others. Nevertheless, the beneficial societal ends do not justify the detrimental means of disregarding the constitutional foundation of our nation.

You realize that Judicial review isnt even strictly constitutional right? how far do you role back a strict interpretation of the Constitution.

Sorry to suggest you didn't understand. I'm not trying to insult your intelligence.

Your observation about the irony of the EU's growing closer vs. our nation's allegedly moving further apart is interesting. I'm not so sure our nation is moving apart.

Please understand that I do not embrace the familiar "state's rights" arguments brought by the likes of George Wallace and Roy Moore. I do not believe they are the necessary implication of a recognition of the doctrine of enumerated powers. I trust that you and others recognize that I am not advocating succession or the return to Jim Crow.

Cool Hand

I didnt feel insulted. It's all good, Kemosabe.

I dont think you are advocating secession or Jim Crow, I was just trying to point out what I felt were the obvious ramifications of strict interpretation of the constitution and my concerns with it.

By the way, secession wasnt illegal then or now. Presidents in the early days of america certainly believed in the right of secession and Jefferson Davis was never tried for treason precisely because prosecutors didnt believe that they could make the charge stick because secession was legal.