The Commerce Clause

The last few weeks have made for some really interesting Constitutional debate. In my Constitutional Law class we are learning about the Commerce Clause of the Constitution, and Congress’s ongoing use of it to exact legislation.

To dramatically oversimplify, the history is something like this:

When the nation was first founded, they had the Articles of Confederation, which had an incredibly weak federal government that played second fiddle to the states. Everybody recognized that this led to a lot of problems, with the constant bickering between the states and other trouble, so when the Framers came back together to write the Constitution, they added several clauses to expand the power of the Federal government, including Article I, Section 8, Clause 3, aka the Commerce Clause. This enabled the new federal government to “regulate commerce… among the several states.”

When I was in Hebrew School I once asked my rabbi why the Torah was so hard to understand and why God would choose such a confusing and incomplete document to carry his message and the history of our people. The rabbi chuckled and said “yes, but if He told us everything, what would we have to argue about?”

The law, it seems, is no different. Every word of the Commerce Clause has been debated to death, particularly the definition of the word “commerce.” The most common way we see this debate is through judicial decisions: Congress passes a law giving the executive the right to regulate some area of American life, and when they enforce that power somebody sues, claiming that this law is unconstitutional. The government counters by saying that they are in some way doing their job by regulating “commerce,” and then the debate truly begins.

As the Supreme Court decides these cases and sketches out something resembling a legal precedent, we can see what does and does not fit into the intent of the Framers, at least as far as the current court sees things.

And that’s the really interesting thing: we all want to believe that the Constitution is the American Code of Hammurabi: principles and values and pillars of society that are engraved in stone and clear for the world to see, but that is dramatically not the case.

Almost everyone in my class had a gut reaction against the Court’s decision in Wickard v. Filburn, when the court found that Congress could apply wheat-growing restrictions on wheat grown at home for personal use, but we felt fine when they used Heart of Atlanta and Katzenbach to limit the ability for restaurant and hotel owners (and others) to discriminate against people of color even though they used the same basic legal argument in both decisions. Why? Well, most people don’t like the idea of Congress penalizing some poor farmer, while nobody is going to get in the way of anti-discrimination laws.

Still, the Court’s analysis can get pretty interesting. In Hammer v. Dagenhart, the court used that same reasoning to find that they could not limit child labor, at least through the mechanism of the Commerce Clause.

To look at this from the perspective that gives the most credit to the Justices (as opposed to accusing them of twisting the Constitution to fit their political agendas), we can examine changing societal standards and how that has led the court to read the Constitution differently across time. Still, as my professor points out, sometimes the Court does just seem to decide something a certain way because they want to decide it that way.

In Champion v. Ames, the Supreme Court decided that a law making it illegal to carry lottery tickets across state lines was constitutional because this constituted “commerce.” Why is it commerce? Well, the courts says: “Undoubtedly, the carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce.”

So the answer is that it is commerce because it “undoubtedly” is commerce. Is it really undoubted? It seems very doubted to me, particularly considering that this case reached the Supreme Court, and that people have been debating these issues since the writing of the Constitution.

When the Court overturned Hammer and found that they could limit child labor in Darby, Justice Stone wrote that “the prohibition of such shipment by Congress is indubitably a regulation of the commerce.”

But if this is indubitable, why did the court find the exact opposite to be true, just 23 years earlier? My professor loves little buzzwords like “undoubtedly” and “indubitably,” because the Justice wouldn’t write them if they had, well, anything better to say. Arguably Congress did not have the right to pass these laws, but the Court wants them to have the power, so they decide that they do have the power. Just like that.

Then again, how bad do you feel if the Constitution was bent just a little bit for the betterment of mankind, like ending child labor and passing civil rights legislation? I certainly feel at a gut level like those have been steps in a positive direction.

It’s really strange looking back on the history of the Commerce Clause, and seeing how much power has gone to the federal government, and how much of that was probably not supported by the Constitution.

I like Big Government, and while I value a lot of things about state sovereignty, I honestly believe in a lot of the things that Congress was trying to do during the New Deal, the Civil Rights movement, and more, and I honestly believe that if these matters were left to the states, they would take forever to independently reach the same conclusion.

Congress passed several laws that only have the most theoretical and fleeting relationship with interstate commerce but are, in my opinion, good and positive changes for the country as a whole.

When that happens, we always examine the intent of the Framers, but that brings up a whole other problem. How much deference should we give to these men who, while incredibly brilliant and forward-thinking, no doubt had their own issues and faults? And to describe the “intent” of the “Framers,” as though there is such a thing, has its own problems. The Framers were a group that fought bitterly over the way they wanted the country to run, and was made up of Federalists and anti-federalists who disagreed vehemently over how the Constitution should delegate power between the states and the federal government, and there really is no correct answer, except whatever “intent” is most convenient for the moment.

So at the very least, this class has given me something to think about.

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