Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken.

The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature is based on an interpretive rule that was well known and followed at the Framing.

Prior to 1995, the standard progressive view of the commerce power was that the ample interstate Commerce Clause (granting Congress the power “to regulate commerce . . . among the several states”) is greatly expanded by the Necessary and Proper Clause to allow regulation of not merely interstate commerce, but also any intrastate activity that significantly affected interstate commerce.  This provided unlimited power to regulate.

In U.S. v. Lopez and U.S v. Morrison, the Supreme Court articulated a limitation on that standard argument, holding that small individual effects on interstate commerce can only be aggregated if the activity is one that is commercial or economic.  This placed some limit on the Commerce Clause, but Gonzalez v. Raich read the “economic” category so broadly that it may no longer operate as much of a limitation.  But even if Raich is not followed and the commerce power has a limit, it would still conflict with the second structural feature, rendering many of the enumerated powers redundant.

Let me just mention a few of these redundancies.  First, the Bankruptcy Clause, which provides Congress with the power to establish uniform laws on the subject of bankruptcies, would be surplusage.  Even under the Lopez commerce power, Congress could pass a law allowing bankruptcy for debts entered into in interstate commerce.  But it could also regulate debts entered into in intrastate commerce, because such debts (and their consequences, such as debtor prison, etc.) would affect the ability and tendency for people to enter into interstate commerce.  Congress could aggregate here because the activity – entering into debts – is commercial.  Significantly, the redundancy of the Bankruptcy Clause is even more damning, since the commerce power would avoid the limitations of the Bankruptcy Clause, which authorizes only “uniform laws on the subject of Bankruptcies.”

Second, the Patent and Copyright Clause would also be redundant.  Copyright and patent are both economic activities that would affect interstate commerce. And once again, whatever limitations the Patent and Copyright Clause contain, such as limiting copyright terms to “limited Times,” would be avoided.  In the 2003 case of Eldred v. Ashcroft, the fact that the statute at issue could have been justified under the commerce power was conveniently ignored by virtually all concerned.  Pay no attention to that oversized power in the corner!

Many other powers would also be redundant: the Foreign Commerce Clause, the Indian Commerce Clause, coining money, establishing post offices and post roads – all of these are economic activities that could be justified under the Lopez power.

One might continue the list, but the basic point is made – the enactors of the Constitution clearly did not believe the commerce power had the broad scope that even the Lopez Court permitted.

Reader Discussion

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on December 12, 2014 at 09:57:30 am

The Bankruptcy Clause is not superfluous if it forbids non-uniform bankruptcy laws. Anyway, interstate commerce was slight in 1789 compared to intrastate commerce, but that's no longer true, so the application of the enumerated powers must be very different now.

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Andrew Hyman
on December 12, 2014 at 14:11:43 pm

Andrew, if bankruptcy laws can be passed under the commerce power, then the uniformity requirement DOES NOT APPLY to those laws.

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Mike Rappaport
on December 12, 2014 at 15:56:54 pm

Gosh. I thought the purpose of the Commerce Clause was to prevent States from using their legal and governmental powers to manipulate markets in other States, generally through access to natural resources such as control of State waterways. The current understanding of the Federal government is so far removed from that that it seems to reading from a different Constitution. I wonder if anyone here knows, is there another US Constitution lying around that the rest of us are not aware of?

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Scott Amorian
on December 12, 2014 at 16:53:21 pm

Ask some Ukrainian politicians as one of them remarked a short while ago: "Hey, let's use the US constitution. It is pretty good and the Americans don't seem to be using it."
I think they found it.

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on December 12, 2014 at 18:54:13 pm

You may be right, Mike. But consider an analogous due process case: Graham v. Connor. The Court said: "Because the Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." I don't buy the Court's interpretation of the DP Clause, but maybe one could legitimately apply this sort of logic to the Commerce Clause instead of the DP Clause.

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Andrew Hyman
on December 15, 2014 at 02:28:21 am

Under the Court's cases, the Bankruptcy Power can abrogate state sovereign immunity while the Commerce Power cannot. It had never occurred to me before, but maybe one defense of that set of cases could be that it helps make sure the Bankruptcy Power is not redundant . . .

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Will Baude

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.