Here's the thing about the commerce clause I never understood: How did this one phrase come to overwhelm the 10th amendment?That is a really fascinating question. Actually it is two fascinating questions: one historical -- how have the interpretations evolved over time? -- and one normative -- what limits should be placed on the Commerce Power given the 10th Amendment (and other aspects of the Constitution)? Answering either of these fully would probably require an entire book -- and a lot more knowledge than I have at my disposal right now. Still, I think I can give you the general outlines.
In passing the 10th amendment, it seemed to me that the framers explicitly wanted to limit the Federal government's role over the states. Given this expressed intent, how was the definition of "interstate commerce" so broadly interpreted as to make the 10th amendment almost forgotten.
At the outset, though, it is important to recognize that the 10th Amendment itself is really not all that helpful in trying to define the scope of the commerce power (or indeed any other federal power). It provides, simply, that
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."As Gary notes, the purpose of this Amendment is to make it clear that the powers of the federal government are limited to those enumerated in the Constitution. However, having said that, one has not said much, since the scope of the enumerated powers is far from clear. And nowhere is this lack of clarity more obvious that with respect to the Commerce Clause.
Article I, Section 8 of the Constitution explicitly provides that Congress has the power:
"To regulate Commerce . . . among the several States" and "To make all Laws which shall be necessary and proper for carrying into Execution th[at] Power[].Thus, the power to regulate interstate commerce is one of those powers that is "delegated to the United States by the Constitution, [and] prohibited by it to the States." And, consequently, the effectiveness of the 10th Amendment as a check on that power is entirely dependent on what is meant by the delegation to Congress of the power to "regulate Commerce . . . among the several States."
As with so much of the Constitution, these sweeping generalities are of little help in deciding specific cases. Inevitably, therefore, the scope of the Commerce Power (and by corollary the scope of the 10th Amendment) is whatever the Supreme Court says it is at a given point in time.
The Supreme Court's commerce clause decisions have never been a model of consistency. However, a fundamental shift in the Court's approach occurred in the 1930s. Prior to the New Deal, the Supreme Court took a fairly narrow view of the scope of the commerce power and invalidated a number of laws, particularly those regarding working conditions, on the grounds that those laws were regulating purely local activities occurring entirely intrastate and were therefore beyond the reach of the federal commerce power. See, e.g. Schecter Poultry (1935). Under this line of cases, only activities with a "direct" effect on interstate commerce fell within the Commerce Clause. Otherwise, the courts (presciently) opined, there would be no limit to what Congress could regulate:
If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government.Schecter Poultry.
However, it was exactly this line of argument and the resulting invalidation some of the New Deal legislation that led to Roosevelt's famous "court packing" scheme. While that scheme was met with widespread popular opposition and went nowhere, the Supreme Court "got the message". And, in 1937, only two years after Schecter Poultry, the Supreme Court decided J&L Steel. While purporting to distinguish Schecter, the J&L decision effectively guts it by holding that it is primarily up to Congress, not the Courts, to determine what activities have a sufficient impact on commerce to warrant federal regulation:
Over the next 60 years, this "deference" to Congress became almost complete: regardless of how tenuous the connection or impact, a "finding" by Congress that a particular activity "affected interstate commerce" was seen as sufficient to allow Congress to regulate that activity.The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is . . . the power to enact 'all appropriate legislation' for its 'protection or advancement'. . . ; to adopt measures 'to promote its growth and insure its safety' . . . ; 'to foster, protect, control, and restrain.' . . . That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' . . . Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. . . . Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and to meet it.
In recent years, the Rehnquist Court has appeared to be trying to step back from this abdication and to undertake a more searching inquiry into the reality of the impact on interstate commerce, and this led to the invalidation of several federal statutes and regulations on the grounds that the nexus between the regulated activity and interstate commerce was simply too remote to be within the commerce power. For instance, in United States v. Lopez, the court struck down a federal statute making it a crime to possess a firearm within a school zone. In United States v. Morrisonn, the Court struck down a federal statute providing a federal cause of action to victims of gender-motivated violence. And in my personal favorite, Solid Waste Agency v. U.S. Army Corps of Engineers, the Court held that an isolated water body having no connection with interstate waters was beyond the reach of the Commerce Clause even if it might be used by migratory birds.
All three of these cases were 5-4 decisions with Rehnquist, O'Connor, Kennedy, Scalia, and Thomas in the majority and Stevens, Souter, Ginsburg and Breyer in the minority. And together, these cases led to a widespread belief (hailed by conservatives and condemned by liberals) that the Rehnquist Court was in the process of breathing new life into the idea that there were actually limits to Congress' power under the Commerce Clause.
It is this that makes the recent medical marijuana case so interesting. Relying directly on Lopez and Morrison, the plaintiffs in that case argued that the purely personal possession of marijuana with no intent to sell or distribute it to third parties was an activity whose connection to interstate commerce was so remote as to place it beyond the reach of the Commerce Clause. Given those prior cases and the presumed desire of the Rehnquist Court to place limits on the Commerce Power, one could well be excused for assuming that the Lopez/Morrison/SWA majorities would hold. Indeed, given the privacy implications and the humanitarian purposes of the State law at issue, one might well have expected some of the more "liberal" justices who dissented in the prior cases to join the conservatives in the medical marijuana case. But, it did not happen. The liberal bloc (Stevens, Souter, Ginsburg and Breyer) held fast in its belief that there really were no limits to the Commerce Power and it was the "conservative" bloc that splintered with O'Connor and Scalia joining in asserting that the federal law banning marijuana possession was within the commerce power. This reversal has led some to question whether the "Rehnquist revolution" might well have already run its course.
Frankly, I hope not. Still, it has to be recognized that the outcome of this analysis is very result-oriented. For instance, it is the Commerce Clause that underlies many federal statutes that I fully support -- the 1964 Civil Rights Act being by far the best example of this. Yet it is not hard to argue that the connection between interstate commerce and racial discrimination at Joe's Diner is pretty remote. Thus, a more narrow interpretation of the Commerce Clause could well call into question some of the federal legislation that many of us value most. At the same time, the admonition in Schecter Poultry quoted above has proved all too true: construing the commerce clause to reach anything that can be said to have an indirect effect upon interstate commerce has in fact extended federal authority to practically all the activities of the people. That, it seems to me, is not a good thing either.
In the end, I guess, how you come out on this question depends a lot on whether you believe in federalism itself. Insofar as the United States is a single country, should its laws be essentially uniform or should differences among the states be allowed, even encouraged? Allowing differences among the States tends to make the Country more free. But, allowing states to have different rules also allows them to depart from what the vast majority of the Country as a whole believes to be "acceptable". Consider, for instance, Mississippi in 1964. It is this very tension that has led to the shifting views of the Court on this issue over time, and I for one have no better way of addressing this issue that the essentially ad hoc approach that has been used by the Court so far, reflecting, as it does, the evolving values of the Country as a whole.
3 comments:
Bill... thanks for the analysis. IT does indeed bring up some intesting, if not troubling issues. For example, I think the Commerce Clause can be reasonably used to justify most of today's environmental legislation as these issues often result in interstate pollution and at a minimum, create a level playing field for interstate commerce.
The really touchy example you brought up is the 1964 Civil Rights Act. While few people today would argue the need and the merits of the Act, you can have an interesting conversation over the ends justifying the means.
I know original intent can be a slippery slope and a touchy issue, but I think it's a safe bet that the framers never intended issues like voting rights, access to housing and education as "commerce" issues.
I don't know of another way to constitutionally justify the 1964 Act, so in retrospect, I'm glad they did what they did. But I wish there had been another way.
I found it interesting that in the most recent case that Scalia joined in the majority. I had figured him to be the most militant on this issue, especially given his position on the earlier cases you cited.
The interesting thing that you point out is, that with the commerce clause in full effect that the 10th amendment has been effectively castrated. Other than to preven banning guns around women's shelters and schools, it doesn't seem to be good for a whole lot these days.
Here's a thought for an intesting test case that could have played out: Imagine if DeLay had succeeded beyond his wildest dreams and passed federal legislation protecting Terry Schiavo. How would today's court have come down if the appeal of "Schiavo v Gonzales" had been raised on 10th amendment grounds?
-- Scoggin
I have to think about the Schaivo test case you posit, but my first reaction is that the 10th Amendment really wouldn't -- and shouldn't -- have much to say about that case either. I would hope that, if such a case ever got to the Supreme Court and had to be dedcided on constitutional grounds (as opposed to some other basis) it would be decided on right of privacy rather than State's Rights grounds. If decided on 10th Amendment grounds it would effectivley take the issue away from DeLay, but give it to Jeb Bush. Hardly an improvement.
Sadly, perhaps, the 10th Amendment isn't even a good basis for deciding whether Congress has the power to prohibit guns in school zones. As several decisions have noted, the 10th Amendment is really just a truism: "powers not surrendered are retained." That is not terribly helpful in determining what was surrendered.
The essential uselessness of the 10th Amendment is reflected in the fact that none of the Rehnquist Court's decisions limiting the reach of the Commerce Power were based on that Amendment. Rather, each is based entirely on a holding that the nexus between the regulated/prohibited activity and interstate commerce was too remote. Stated otherwise, the Court held that, while the States had surrendered a lot, they hadn't surrendered THAT much.
In reaching these conclusions, though, the majority in each case overruled a factual finding by Congress that the regulated/prohibitied activities did have a significant effect on interstate commerce. (Talk about activist judges!) And that is the core weakness of each case: if the Court can overrule factual determinations on these kinds of issues, where do you draw the line? How do you distinguish laws banning guns in school zones from laws banning racial discrimination at Joe's Diner, from laws banning possession of marijuana, from laws banning the filling of isolated wetlands? What sorts of activities are too remote and what sorts are not?
The problem posed by the Commerce Clause is that it provides no criteria for distinguishing those activities that are within the power from those that are beyond it. As a consequence, unless you are utterly committed to an originalist rule of construction, the scope of the Commerce Power (and therefore the scope of what the States "surrendered" in delegating the Commerce Power to Congress) is whatever the Court says it is. And, even the most committed originalist no longer believes that it is appropriate to limit the Commerce Power to the types of problems (e.g. interstate tarriffs) that led the founders to add the Commerce Power to the Constitution. See, e.g. Scalia's concurrence in the medical marijuana case. (The most interesting thing about the medical marjuana case is the contortions Scalia has to go through to justify his position in that case. Note, also, that not once does the great "originalist" mention the original intent of the drafters).
In the J&L Steel case (and others decided about the same time), the Court took itself out of the business of deciding what sort of nexus to interstate commerce was required and left that judgment to Congress. This was, of course, leaving the fox to guard the hen house and was basically the death knell for "States' Rights" (and for the sentiments that underlay the 10th Amendment). Indeed, in a very real sense, one could argue that the last battles of the Civil War were fought, not in 1865 in Atlanta and Richmond, but in 1937 in the Supreme Court. As with the physical battles, the Union also prevailed over the States in the Supreme Court when the Court ceded to Congress the ability to define the scope of its own power.
The Rehnquist Court started trying to re-impose some constraints. But, as the medical marijuana case indicates, it is pretty hard to get even 5 of nine justices to consistently agree on what the constraints should be. The result of the efforts to re-impose constraints is a mishmash of decisions that even Scalia can't convincingly reconcile with each other.
I gather you bemoan the Court's abdication to Congress. Instinctively, I do to. I still have an abiding affection for the potential a robust federalism has to promote diversity (and therefore freedom). But, I suspect this affection is more a function of nostalagia and wishful thinking than it is of either realism or logic.
Here's the rub. George Washington and Robert E. Lee thought of themsleves as Virginians first and Americans second. For them, the United States was more like today's European Union than it is like 21st Century America. For most Americans today, the alliegences are reversed. Certainly I do not think of myself as an Ohioan, and my guess is even most Texans identify themselves first and foremost as Americans. What this reflects is that, in a political sense, the Country has become -- is becoming -- ever more tightly unified, and States as separate political entities are becoming ever more anachronistic, more like counties in the colonial era. Greater political, economic and social unification has inevitably led to a need, and for most people a desire, for ever more uniformity in our laws. That uniformity can only be provided by the federal government. And, except for matters implicating due process, equal protection and other provisions of the Bill of Rights, the Commerce Cluase is the only mechanism provided by the Constitutuion for achieving that uniformity.
The real issue then, is not "what is commerce" but rather how much uniformity we should have and on what issues? Where the ends are those we support (e.g. civil rights), we strongly support uniformity. Uniformity becomes a problem only when the federal government is seeking to do something we think is wrong (e.g. banning possession of marijuana for palliative medical reasons). But, there is a way of getting rid of the bad uniformity without undermining Congress' power to impose uniformity where it is good. That is the federal political process: if you believe states should have the power to take differing positions on possession of marijuana, all you have to do is to elect a federal government that shares that belief and is willing to act on it.
In the end, I think the Court was right to cede these kinds of issues to Congress and I think the Rehnquist Court's efforts to limit the federal commerce power are probably ill-concieved and almost certainly futile. We are no longer a collection of largely independent States any more than Ohio or Texas is a collection of largely independent counties. We are a single Country and, for the most part, our laws on important issues ought to be -- need to be --largely uniform. At least with respect to matters that do not impact the Bill of Rights, Congress is probably better suited to deciding when uniformity is needed than is the Court.
All of this raises, of course, the even broader issue of the role of the Supreme Court in defining limits on federal and state power. It illusatres, I think, the truth of the assertion that the interpretations we give to the Constitution must change over time, even though, as the Commerce Clause cases illustrate, the effect of adopting this position is to make major parts of the Constitution end up meaning whatever the Court says they do.
The beauty of this approach, in my mind, is that it allows the Court to function as a political branch, acting in some cases as a constraining influnece on government power (e.g. the isolated wetland case) and in other cases as a goad to that power (e.g. Brown v Bd of Education). Many of these political judgments by the Court will be wildly controversial, just as much legislation is. But, as the Commerce Clause cases illustrate, the system is self- correcting. Where the Court's decisions differ from the prevailing consensus one of two things will eventually happen. Either the Court's decisions will eventually change to conform to that consensus (Dred Scott, Plessy v Fersuson and Schecter Poultry are no longer the law of the land, thank God) or the consesus will change to conform to the Court's decisions (Brown is sitll the law of the land and is now almost universally accepted as such). In many of these cases -- Roe v. Wade being the most obvious current example -- the process of deciding which should change, the consensus or the Court, is wrenching and requires many years. But, in the end, the Court and the poltical consensus will end up being largely congruent. In short, one way of the other, democracy ultimately prevails. But, in the meantime, the Court will have provided an extraordinarily valuable service regardless of how it decides particular cases, by forcing us to really think about where we want to go as a Country.
Ain't democracy grand -- despite its messiness?
I agree with much of what you said but about how America has transitioned from a collection of states to a more unified nation. (and yes, at least on most days, I am an American first and a Texas second.)
However, the thing hanging out for me is that inherent "messiness" as you put it in our system. If we are going to hang our hats on the commerce clause to be the great legal unifier for our nation, let's beef it up. Let's amend the constitution so it agrees with the way it has been operationalized: Let's explicitly give the fed great power over the states, and make clear all of the other things we have allowed to creep under this seemingly innocuous phrase.
In other words, if we say the meaning of the constitution changes over time, then lets change the constitution so that it agrees with the meanings we've ascribed to it. If it can't pass the State Legislative muster, then we need to reconsider whether or not the changes are real or simply wishful thinking on the part of a powerful few.
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