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< | One Sentence, Three Meanings: Why We Need More from Con-Law |
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> | Con -textual, not -stitutional, Law |
| | -- By ThomasVance - 11 Mar 2022 |
| | Introduction |
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< | This essay uses the Commerce Clause to explore the ability of judges to attribute significantly different meanings to the same sentence. Unsettled by this endless game of interpretation, I briefly propose an addition to the 1L Constitutional Law curriculum. |
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> | “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Since the early 19th century, the Court has spent considerable time shaping the word “Commerce.” But its cases understand the phrase in different ways that only make sense by focusing on context. Four distinct cases exemplify this proposition. |
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< | Article I, Section 8 of the U.S. Constitution states that "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The obvious inquiry concerns the word "Commerce." Three distinct cases exemplify the different meanings that the Supreme Court has ascribed to the term. |
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> | Section II: Commerce Clause Jurisprudence |
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> | A. Origins |
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< | What is Commerce? |
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> | In Gibbons (1824), the Supreme Court held that Congress’ commerce power is a full, exclusive, and plenary power that prescribes the rules that govern commerce. Here, the Court was presented with a conflict between a state-granted monopoly over steamboat operation and a federally-granted license to operate a steamboat. Marshall defined “commerce” as the commercial intercourse between nations and parts of nations in all its branches. This definition ensured that “commerce” covered “navigation,” and it specified Congress’ ability to regulate interstate and inter-nation navigation. |
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< | In Hammer v. Dagenhart (1918), the Supreme Court ruled a piece of legislation outside the scope of the Commerce Clause. The legislation prohibited the interstate transportation of goods produced by child labor. Prohibiting the interstate shipment of goods is, arguably, plainly allowed under the Commerce Clause. However, the Court focused on the effects of the legislation and reasoned that, because it would subject intrastate production to federal control, the bill was not constitutional. As read, the opinion seeks to maintain a healthy balance between federal power and the power of the States. Although, Hammer was decided during what scholars call the "_Lochner_ Era"; a period characterized by the Court's lack of deference to legislatures and heightened interest in protecting free markets. |
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> | Marshall rejected a narrower definition of commerce that would limit the term to traffic, buying and selling, or the interchange of commodities. Why? Post-ratification, Marshall seemed concerned with maintaining strong powers for each branch of government. Marshall established judicial review in Marbury, created a deferential standard of review in McCulloch, and sided with the oppressor in M’Intosh. The Chief Justice’s previous opinions are more telling of how he would define commerce in Gibbons than his understanding of the “common” definition of commerce. The United States was still a relatively young country, and Marshall did not want to stunt its growth. |
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< | In Wickard v. Filburn (1942), the Supreme Court upheld the Agricultural Adjustment Act of 1938 as a valid exercise of the Commerce power. The legislation attempted to regulate the price of wheat by implementing regulations on supply. A farmer grew wheat in excess of his Act-designated allotment. Even though it was for home consumption and not for sale, the court held that Congress could regulate activity that, in the aggregate, had a substantial effect on interstate commerce. The opinion discussed the relationship between excess wheat and interstate commerce to justify its decision and expansion of the Commerce power. Wickard was decided nearly a decade after the Great Depression, so the Court may have not been too keen on letting marks go unregulated. |
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> | B. Lochner Era |
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< | In United States v. Lopez (1995), the Supreme Court ruled that the 1990 Gun-Free School Zones Act was beyond the scope of the Commerce power. After a high school senior violated the Act by bringing a concealed gun into school, the student challenged the constitutionality of the act. The Court provided three general categories that are subject to regulation under the Commerce power: channels of interstate commerce, instrumentalities of or persons in or things in interstate commerce, and activity that substantially affects interstate commerce. Reasoning that guns in school zones fall under the third category, the Court held that the link between guns in school zones and interstate commerce was too attenuated and thus was not a legitimate exercise of Commerce power. While the court did ask a series of questions now referred to as the Lopez test, the bottom line is that Commerce now encompassed the three aforementioned categories and the third category required a non-attenuated link between the regulated activity and interstate commerce. Although, what constitutes an attenuated link is far from clear. Subsequent cases that apply the Lopez test provide little clarity (See e.g., United States v. Morrison). |
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> | Nearly a century later, the Supreme Court was concerned with a different kind of national growth: economic growth. These concerns animated what scholars refer to as the “Lochner Era” – a period of heightened judicial scrutiny. |
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> | In Hammer (1918), the Supreme Court ruled a prohibition on the interstate transportation of goods produced by child labor to be outside the scope of the Commerce Clause. Such a prohibition could be classified as a limit on commercial intercourse between parts of nations because it limited what could enter one state and exit another. Instead of making a decision under Marshall’s definition of commerce, the Court focused on the effects of the prohibition. The Court reasoned that because the prohibition would subject intrastate production to federal control, the prohibition was unconstitutional. |
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< | Why The Differences? |
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> | The decision to emphasize intrastate production and de-emphasize interstate commerce is hard to understand from a purely textual perspective. The Constitution does not provide a framework such that one would know whether to scrutinize the legislation’s effect on commercial interactions or the legislation’s effect on federalism. |
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< | Hammer, Wickard, and Lopez are three different cases, with three different interpretations of a sentence that has not changed since 1788. With the exception of Hammer, these cases are still good law. So why the varying interpretations? |
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> | The decision to highlight one effect of the prohibition over another makes more sense from a contextual perspective. Operating under the assumption that the most confident and able people would fuel the economy, the Court was quite interested in preserving free markets. Thus, Justice Day could confidently frame the prohibition as an instance of supply-side, government intervention. |
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< | Holmes, suggests that the answer lies in “some attitude [of the justices] upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions” (Holmes, 9). Different interpretations of the same sentence can appear to be rooted in some new, better, “logical” reading of the sentence or Constitutional history. But different interpretations are a result of the policy priorities and values of justices, not just the letter of the law. The Hammer court wanted to preserve free market economics. The Wickard court realized that the free-market could not always fix itself. The Lopez court sought to reel in Congressional Commerce power after expansion in the New Deal and Civil Rights Eras. Subsequent configurations of the nine justices may opt to establish a new test or rule based on their values. Said values may be in line with or entirely different from the values that have been used to justify Commerce decisions before. |
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> | C. New Deal Era |
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< | Section II: What We Need and Why We Need It |
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> | Following the Great Depression, the definition of Commerce ballooned. |
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< | A Plea for a Framework |
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> | In Wickard (1942), the Supreme Court upheld a Congressional attempt to regulate wheat prices that imposed limits on wheat growth. A farmer grew wheat in excess of his designated allotment. Even though it was for personal and not commercial use, the Court held that Congress could regulate activity that, in the aggregate, had a substantial effect on interstate commerce. |
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< | Therefore, it is not enough for Constitutional Law to teach students the current rules and policy rationales for these rules. If the official interpretation of the Commerce Clause can change at moment’s notice, we, the students, will be ill-equipped to predict or even litigate for or against such a change. If the Court issues a decision next term that provides for more legislative deference without overturning Lopez, Constitutional Law should have provided students with enough information to, at least, understand that that was a possibility. Studying the moves in contemporary cases (Morrison, Raich, NFIB) is important because they can help us understand what sitting justices might be thinking. But we should also learn to develop a framework for discerning the priorities of judges that are not yet on the Supreme Court. For instance, if and when The Honorable Kentanji Brown Jackson is appointed to the Supreme Court, how can we identify what she values in debates about federalism, state sovereignty, and Congressional reach? Or, what if Gabrielle Stanfield is appointed to the high court and never had a chance to discuss federalism in one of her earlier opinions as a Circuit Judge. What framework can we deploy to predict how she might vote, especially if we are trying to get her to vote a certain way? |
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> | Justice Jackson’s substantial effects test & aggregation principle operated as both a repudiation of Lochner era jurisprudence and an expansion of Marshall’s original formulation of commerce. Jackson refused to draw lines between local production and national transportation. But he also interpreted the Commerce Clause in a way that does not obviously follow from Marshall’s interpretation. Even though Marshall did not limit interstate commerce to traffic, purchases, and trade, it is not apparent that power over interstate commerce would include individual activities that could substantially affect interstate commerce in the aggregate. The Constitution and prior case-law cannot explain the impetus for a third, unique interpretation of the Commerce clause. Context can. Justices realized that the free market could not fix everything. Wickard shows a Court invested in strengthening Congressional control over interstate commerce. |
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< | I have no clue what such a framework would look like, but I imagine it starts with a much larger emphasis on the role of individual psychology and a conversation about identity states. These conversations should not start nor end in Law & Contemporary Society. They should start in 1L Constitutional Law and extend as long as our practice does. |
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> | D. Lopez
Following the New Deal Era and the passage of Civil Rights legislation under the Commerce Clause, a majority of members on the Court were itching for an opportunity to reel in Congressional power. Context changed and Lopez (1995) was that opportunity.
There, the Supreme Court ruled that the Gun-Free School Zones Act was beyond the scope of the Commerce power. The Court provided three general categories that are subject to regulation under the Commerce power: channels of interstate commerce, instrumentalities of or persons in or things in interstate commerce, and activity that substantially affects interstate commerce. Reasoning that guns in school zones fall under the third category, the Court held that the link between guns in school zones and interstate commerce was too attenuated and thus was not a legitimate exercise of Commerce power.
A close reading of the Commerce Clause or of pre-Lopez cases does not explain the non-attenuation requirement for the substantial effects test and aggregation principle. Context does. The Court was troubled by the breadth of the Commerce power and its effect on federalism, but it was not prepared to overrule the New Deal and Civil Rights line of cases. As a result, the Court named three general categories for permissible exercises of the Commerce power and inserted a limit on the third category.
Section III: Conclusion
Gibbons, Hammer, Wickard, and Lopez define Commerce in different ways. A strict focus on text or a mistaken belief that each case simply applies the law to the facts is bound to lead one astray. A focus on context provides a way out as it provides a plausible explanation as to why each majority opinion greatly differed from the previous. These cases are not about providing stable definitions of “commerce.” Rather, they are examples of different majorities justifying their internal balancing of federalism, national growth, and concern for the public. |
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