Academic journal article Northwestern University Law Review

A Critique of the Narrow Interpretation of the Commerce Clause

Academic journal article Northwestern University Law Review

A Critique of the Narrow Interpretation of the Commerce Clause

Article excerpt

Congress has exercised its power "to regulate Commerce ... among the several States"1 to govern not only obviously economic matters (such as commercial transportation, antitrust, and agriculture), but also seemingly noncommercial subjects as diverse as crime, civil rights, health and safety, and the environment.2 From 1937 to 1994, the Supreme Court rejected every challenge to such Commerce Clause legislation on one of three grounds. First, Congress could keep the "channels of interstate commerce" (like highways) free from injurious or immoral uses. Second, it could protect commercial "instrumentalities" such as railroads, as well as the goods and passengers they carried. Third, it could regulate even noneconomic or in-state conduct that "substantially affected" interstate commerce.

In United States v. Lopez,4 four Justices voted to continue this rubberstamp deference.5 The majority, however, struck down the Gun-Free School Zones Act because it attempted to reach conduct-firearm possession near schools-that did not involve commercial "channels" or "instrumentalities," was neither economic nor substantially affected interstate commerce, and was a matter of traditional state concern.6 In a concurring opinion, Justice Thomas criticized the "substantial effects" test as inconsistent with the original meaning of the Commerce Clause, which assertedly restricted Congress to dealing with the sale and shipment of goods between states. He wrote a similar concurrence in United States v. Morrison,a in which the Court invalidated a federal statutory provision granting a civil cause of action to victims of gender-motivated violence that occurred within a state.9

Justice Thomas's narrow interpretation of the Commerce Clause is hardly novel, having been endorsed by most Justices from 1889 until 193610 and by scholars such as Albert Abel, Raoul Berger, and Richard Epstein.ll Randy Barnett's recent defense of this positions makes an original contribution by seriously grappling with linguistic and historical evidence indicating that the Commerce Clause had a much broader scope, as presented in the pioneering work of Professors Adair, Hamilton, and Crosskey" and in our recent article. 14

Professor Barnett does not contest our claim that each of the key terms in the Clause-"commerce," "among the several States," and "to regulate"-had both a limited and an expansive meaning in the everyday parlance of 1787.15 Nonetheless, he contends that the Framers and Ratifiers invariably used these words in their restrictive sense.16 We disagree, and continue to adhere to our three-fold argument. First, as we recognized, the core definition of "commerce" has always been the trading and transportation of merchandise, but we dispute Barnett's assertion that this was the exclusive meaning conveyed in the Commerce Clause.17 Rather, that word encompassed other activities intended for the marketplace, such as the production of goods (e.g., through manufacturing, mining, and farming) and the compensated provision of services (labor, insurance, banking, and the like). 18 Second, we reiterate our conclusion that "among the several States" meant not merely "between people of different states" (as Professor Barnett and his predecessors would have it), but also "within a state but affecting other states."19 Third, we continue to maintain that "to regulate" embraces not simply rules that affirmatively direct conduct (Barnett's unique view), but also prohibitions.2

We submit, then, that Professor Barnett has failed to prove that no one used the language of the Commerce Clause in its ordinary broader sense. To begin with, he employs a methodology that excludes much of the evidence that supports our reading of the Clause. Moreover, we do not share Barnett's interpretation of many eighteenth-century documents. Finally, if our textual and historical analysis is at least plausible, it should be preferred over Barnett's, which would require dismantling the entire legislative and judicial framework built upon the Commerce Clause. …

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