Nahmod Law

The Commerce Clause

Teaching the Commerce Clause presents challenges and opportunities. What follows are some of them.

Challenges: The Long and Winding Road

What confronts students immediately are the complicated history and changing doctrines of the Commerce Clause in the Supreme Court. One starts off with Gibbons v. Ogden, the seminal decision in this area, in which John Marshall set out a very broad reading of the commerce power: first, it is defined generously as that commerce that concerns more states than one and, second, it is declared plenary in nature. An important assumption underlying Gibbons was that it is the political process that enforces federalism. After that, however, in the late 19th and early 20th centuries, the Court increasingly began to enforce federalism on its own, on the formalist assumption that there are areas of local concern (such as manufacturing, production, the employment relationship and the like) that are immune from commerce power regulation.

Then came the middle 1930’s, during which the Court switched gears dramatically and adopted what might be called a realist approach to the commerce power. Under this approach, the Court looked at what was actually going on in the economy. The Jones & Laughlin, Wickard and Heart of Atlanta/McClung cases are excellent examples of cases in which the Court upheld the regulation of intrastate activities on the ground that those activities had a significant effect on interstate commerce. In a very real sense, there was a return to Gibbons.

The Lopez and Morrison cases, beginning in the mid-1990’s, were a partial shift back to the pre-1930’s formalist period. I say “partial” because the earlier cases were not overruled but distinguished primarily on the ground that they involved commercial or economic intrastate activities, unlike the possession of guns near schools and gender-based violence.What are students to make of all of these historical and doctrinal shifts? For example, a student asked me why we study Hammer v. Dagenhart at all, since it was explicitly overruled by Darby in 1941.


Historical Context. These decisions provide an excellent opportunity to discuss the different historical periods in which various decisions were handed down. Justices are people who live in society and are inevitably influenced by intellectual and social currents. They also have political and ideological preferences which may play a role in their decision-making.

Federalism and Political Processes. I have long maintained that one’ s view of national and state political processes is a significant determinant of one’s view of the proper institutional role of the Supreme Court (and of standards of review–see below). This point can be made about McCulloch with respect to the broad scope of the Necessary and Proper Clause: it was for the national political process to choose the means to accomplish constitutionally legitimate means. The same point can also made about McCulloch in connection with the invalidity of the Maryland tax on the National Bank: the national interest was not represented in the Maryland legislature.

This applies as well to the enforcement of federalism.  If one thinks that states’ interests are adequately represented in Congress, then the Court need not enforce federalism. If, however, one thinks that those interests are inadequately represented in Congress, then the result may be that the Court should enforce federalism which is an important structural component of our Constitution. Pretty clearly, beginning in Lopez, a majority of the Court bought into the latter position.

Standards of Constitutional Review. A major theme of constitutional law revolves around the appropriate standards of judicial review and, in particular, why particular standards of review are chosen by the Court. After all, these standards–for example, rational basis review, intermediate level scrutiny, strict scrutiny–do not appear in the Constitution. One of the teaching points about the Commerce Clause and its changing history is that the choice of standard must be explained and justified in each era. Note that this directly ties into one’s view of the political process. To the extent that the Court views the political process as working reasonably well to protect states’ interests, the standard of Commerce Clause review will be deferential. And to the extent the Court views the political process as inadequate for this purpose, the standard of review will be much less deferential, as in Lopez and, especially, Morrison, where the Court does not even defer to extensive Congressional findings on the impact of gender-based violence on interstate commerce.

Another Lesson from History. The historical development of the Commerce Clause is obviously not over. These federalism and political process concerns will never go away. In one historical period, federalism will be found to outweigh political process concerns. In another, political process concerns will be found to outweigh federalism concerns. That’s one reason it is important to study overruled Commerce Clause decisions of the Court. In this limited sense, Hammer v. Dagenhart was not overruled: the Court’s concerns in Hammer are still with us even if Hammer‘s doctrinal holding is not.

In the meantime, Lopez and Morrison, as glossed by Raich, represent current Commerce Clause doctrine.

IMPORTANT UPDATE: Current commerce clause doctrine is further set out in the Supreme Court’s controversial 2102 decision in the Affordable Care Act case. See my posts of 6-28-12 (description and analysis) and 7-14-12 (video discussion) on this blockbuster decision.

Written by snahmod

September 26, 2009 at 9:05 am

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